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MICHIGAN  WORKMEN'S  i 
COMPENSATION  CASES 


INCLUDING 


RULES   OF  PROCEDURE 
FORMS  AND   BLANKS 


JULY  1910 


PUBLISHED  I1Y  INDUSTRIAL  ACCIDENT  HOARD 


GIFT  OF 


DOCUMENTS 

DEPT. 


STATE  OF  MICHIGAN 


« 


WORKMEN'S  COMPENSATION  CASES 

Determined  By 

INDUSTRIAL  ACCIDENT  BOARD 

AND 
SUPREME  COURT 


Also  Administration  and  Practice, 
Rules  of  Procedure, 
Forms  and  Blanks. 


LANSING,  MICHIGAN 

WYNKOOP   HALLENBECK  CRAWFORD  CO.,   STATE  PRINTERS 

1916 


MEMBERS  AND  OFFICERS 

OF 

MICHIGAN  INDUSTRIAL  ACCIDENT  BOARD- 


JOHN  E.  KINNANE,  Chairman, 
THOMAS  B.  GLOSTER, 
JAMES  A.  KENNEDY. 

FRED  A.  ZIERLEYN,  Deputy  Commissioner, 
ORA  E.  REAVES,  Deputy  Commissioner, 

GILBERT  W.  DICKSON,  Secretary. 


340586 


TABLE  OF  CASES. 


PAGE. 

Acme  Universal  Joint  Manufacturing  Co.,  Hindman  v . . .     56 

Acme  White  Lead  &  Color  Works,  Adams  v 122,  xiii 

Adams  v.  Acme  White  Lead  &  Color  Works 122,  xiii 

Agler  v.  Michigan  Agricultural  College 98,  xiv 

Alderdyce,   Keyes-Davis   Company    v. 336 

American   Car  &  Foundry  Company,  Bischoff  v 362 

American  Car  &  Foundry  Company,  Jankowski  v 327 

American  Car  &  Foundry  *  Company,  Kalucki  v 390 

American  Car  &  Foundry  Company,  Matwiczuk  v 89 

Andrewjeski  v.  Wolverine  Coal  Company   267 

Bacik  v.  Solvay  Process  Company  48 

Bayer  v.  Bayer 435 

Bayer,  Bayer  v 435 

Bayne  v.  Riverside  Storage  &  Cartage  Company 248 

Beaudry  v.  Watkins  and  Radcliffe  439 

Beckwith,  Estate  of  P.  D.  V.  Spooner   28'5 

Bell  v.  Hayes-Ionia  Company 447 

Bernard  v.  Michigan  United  Traction  Company xii 

Bevans  v.  Stewart  Laundry  Company  388 

Bischoff  v.  American  Car  £  Foundry  Company 362 

Black  Masonry  &  Contracting  Co.,  James,  Dyer  v 52,  488 

Blair,  et  al.,  Hills  v 250 

Blynn  v.  City  of  Pontiac 231 

Bruce  v.  Taylor  and  Maliskey 442 

Brule  Timber  Company,  Malzac  v 330 

Carpenter  v.  Detroit  Forging  Company  378 


vi  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

PAGE. 

Chalmers  Motor  Company,  Clem  v 175 

City  Electric  Railway  Company,  McKay  v 63 

Clark  v.  Clark 308 

Clark,  Clark  v 308 

Clem  v.  Chalmers  Motor  Company  175 

Cline  v.  Studebaker  Corporation    214 

Commonwealth  Power  Company,  Worden  v 14 

Consumers  Ice  &  Fuel  Company,  Linsner  v 61 

Continental  Motor  Manufacturing  Company,  Posner  v. . .  29 

Damps  v.  Michigan  Central  Railroad  Company  25 

Deem  v.  Kalamazoo  Paper  Company  219 

Denton's  Sleeping  Garment  Mills,  Dr.,  Redfield  v 139 

Detroit,  City  of,  Marshall  v 57 

Detroit,  City  of,  Wood  v 77,  xii 

Detroit  Forging  Company,  Carpenter  v 378 

Detroit,  Mt.  Clemens  &  Marine  City  Ry.,  Finn  v 222 

Detroit  Saturday  Night  Company,  Spooner  v 148 

Detroit  Shade  Tree  Company,  Kunze  v 467 

Detroit  Steel  Products  Company,  Jendrus  v 106 

Detroit-Timken  Axle  Co.,  Mackin  v xi 

Detroit  United  Railway,  Foley  v 352 

Dodge  Brothers,  Oleskie  v 45 

Dyer  v.  James  Black  Masonry  &  Contracting  Company. 52,  488 

Embury -Martin  Lumber  Company,  Tuttle  v 471 

Fiege  Desk  Company,  Hirschkorn  v 206 

Finn  v.  Detroit,  Mt.  Clemens  &  Marine  City  Ry 222 

Fitzgerald  v.  Lozier  Motor  Company   302 

Foley  v.  Detroit  United  Railway 352 

Ford  Motor  Company,  Konkel  v 324 

Gignac  v.  Studebaker  Corporation  204 

Grand  Rapids,  City  of,  Vereeke  v 244 


TABLE    OF    CASES.  vii 

PAGE. 

Grand  Rapids  Show  Case  Co.,  Lardie  v 17 

Grand  Trunk  Railway  Company,  Papinaw  v 164 

Grove  v.  Michigan  Paper  Company  241 

Hart,  Harry,  In  re    338 

Hayes-Ionia  Company,  Bell  v 447 

Hills  v.  Blair,  et  al 250 

Hills  v.  Oval  Wood  Dish  Company 11,  431 

Hindman  v.  Acme  Universal  Joint  Mfg.  Company 50 

Hirschkorn  v.  Fiege  Desk  Company 206 

Hoertz  &  Son,  et  al.,  Charles,  Opitz  v 311 

Hopkins  v.  Michigan  Sugar  Company 185 

Jankowski  v.  American  Car  &  Foundry  Company 327 

Jendrus  v.  Detroit  Steel  Products  Company 106 

Kalamazoo  Paper  Company,  Deem  v 219 

Kalucki  v.  American  Car  &  Foundry  Company 390 

Kennelly  v.  Stearns  Salt  &  Lumber  Company 341 

Keyes-Davis  Company  v.  Alderdyce  336 

Kilgren  v.  E.  H.  Stafford  Manufacturing  Co. 461 

Klawinski  v.  Lake  Shore  &  Michigan  Southern  Railway. .  194 

Konkel  v.  Ford  Motor  Company 324 

Kunze  v.  Detroit  Shade  Tree  Company 467 

Lake  Shore  &  Michigan  Southern  Ry.,  Klawinski  v 194 

Lardie  v.  Grand  Rapids  Show  Case  Company 17 

La  Veck  v.  Parke,  Davis  &  Company 35 

Limron  v.  Pere  Marquette  Railroad  Company  300 

Lindsteadt  v.  Louis  Sands  Salt  &  Lumber  Company 370 

Lin sner  v.  Consumers  Ice  &  Fuel  Company 61 

Little  Company,  C.  H.,  Rider  v 321 

Lozier  Motor  Company,  Fitzgerald  v 302 

McCoy  v.  Michigan  Screw  Company 295 


viii  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

PAGE. 

McKay  v.  City  Electric  Railway  Company 63 

Mackin  v.  Detroit-Tiinken  Axle  Company xi 

Malzac  v.  Brule  Timber  Company  330 

Marshall  v.  City  of  Detroit  57 

Matwiczuk  v.  American  Car  &  Foundry  Company 89 

Maxwell  Motor  Company,  Weaver  v 200 

Michigan  Agricultural  College,  Agler  v 98,  xiv 

Michigan  Cabinet  Company,  Visser  v 319 

Michigan  Central  Railroad  Company,  Damps  v 25 

Michigan  Paper  Company,  Grove  v 241 

Michigan  Screw  Company,  McCoy  v 295 

Michigan  Sugar  Company,  Hopkins  v 185 

Michigan  United  Traction  Company,  Bernard  v xii 

Miller  v.  Riverside  Storage  &  Cartage  Co 209 

Moon  Lake  Ice  Company,  Ramlow  v 485 

New  York  Central  Company,  Schrewe  v 459 

Oleskie  v.  Dodge  Brothers 45 

Opitz  v.  Charles  Hoertz  &  Son,  et  al 311 

Original  Gas  Engine  Company,  Robbins  v 344 

Oval  Wood  Dish  Company,  Hills  v . : 11,  431 

Papinaw  v.  Grand  Trunk  Railway  Company 164 

Parke,  Davis  &  Company,  La  Veck  v 35 

Parke,  Davis  &  Company,  Shafer  v 7 

Pederson  v.  J.  W.  Wells  Lumber  Company   21 

Pere  Marquette  Railroad  Company,  Limron  v 300 

Pinel  v.  Rapid  Railway  System  192 

Pontiac,  City  of,  Blynn  v 231 

Posner  v.  Continental  Motor  Manufacturing  Company. .     29 
Purdy  v.  City  of  Sault  Ste.  Marie 65,  xii 

Quincy  Mining  Company,  Schoenreiter  v 32 


TABLE    OF    CASES.           .  ix 

PAGE. 

Rainlow  v.  Mooii  Lake  Ice  Company 485 

Rapid  Railway   System,  Pinel   v. 192 

Rayner  v.  Sligh  Furniture  Company 279 

Reck   v.  Whittlesberger   259 

Redfield  v.  Dr.  Den  ton's  Sleeping  Garment  Mills 139 

Rider  v.  C.  H.  Little  Company  321 

Riverside  Storage  &  Cartage  Company,  Bayne  y 248 

Riverside  Storage  &  Cartage  Company,  Miller  v 209 

Robbins  v.  Original  Gas  Engine  Company 344 

Roberts  et  al.  v.  Whaley  and  Edwards 453 

Robinson  v.  Wayne  County  Moving  &  Storage  Company .  .  464 

Sands  Salt  &  Lumber  Company,  Louis,  Lindsteadt  v 370 

Sault  Ste.  Marie,  City  of,  Purdy  v 65,  xii 

Schoenreiter  v.  Quincy  Mining  Company   32 

Schrewe  v.  New  York  Central  Railroad  Company  ......  459 

Scott  v.  What  Cheer  Coal  Company   1 

Shafer  v.  Parke,  Davis  &  Company   7 

Sligh  Furniture  Company,  Rayner  v 279 

Solvay  Process  Company,  Bacik  v 48 

Spooner  v.  Detroit  Saturday  Night  Company  148 

Spooner,  Estate  of  P.  D.  Beckwith  v .- 285 

Stafford  Manufacturing  Company,  E.  H.,  Kilgren  v 461 

Stearns  Salt  &  Lumber  Company,  Kennelly  v 341 

Stewart  Laundry  Company,  Bevans  v 388 

Studebaker  Corporation,  Cline  v 214 

Studebaker  Corporation,   Gignac  v. . 204 

Taylor  and  Maliskey,  Bruce  v 442 

Tuttle  v.  Embury-Martin  Lumber  Company 471 

Vereeke  v.  City  of  Grand  Rapids  244 

Visser  v.  Michigan  Cabinet  Company   319 

Watkins  and  Radcliff  e,  Beaudry  v 439 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


PAGE. 

Wayne  County  Moving  £  Storage  Company,  Robinson  v. . .  164 

Weaver  v.  Maxwell  Motor  Company  200 

Wells  Lumber  Company,  J.  W.,  Pederson  v 21 

Whaley  and  Edwards,  Roberts,  et  al.  v 453 

What  Cheer  Coal  Company,  Scott  v 1 

Whittlesberger,  Reck  v 259 

Wolverine  Coal  Company,  Andrewjeski  v 267 

Wood  v.  City  of  Detroit 77,  xii 

Worden  v.   Commonwealth  Power  Company 14 


INTRODUCTION. 


This  Report  of  Workmen's  Compensation  Cases  and  Rul- 
ings has  been  prepared  and  published  by  the  Michigan  In- 
dustrial Accident  Board  as  an  aid  in  the  understanding  and 
administration  of  the  law.  It  substantially  covers  the  de- 
velopment and  administration  of  the  Compensation  Law  up 
to  the  date  of  publication,  July,  1916,  and  contains,  in  addi- 
tion to  the  formal  opinions  of  the  Board  and  Supreme  Court, 
the  Rules  of  Procedure,  Rules  and  Practice  to  be  followed 
in  reporting  accidents  and  adjusting  cases,  Miscellaneous 
Rulings,  Opinions  by  the  Attorney  General,  etc.  The  formal 
written  opinions  filed  by  the  Board  in  what  are  considered 
leading  cases,  involving  the  interpretation  of  important  fea- 
tures of  the  law,  are  published  in  full.  All  the  decisions 
handed  down  by  the  Supreme  Court  in  cases  appealed  from 
the  decision  of  the  Board  are  included  in  the  report.  These 
together  with  the  Miscellaneous  Rulings  and  other  matter 
will,  we  think,  show  the  system  of  administration  and  inter- 
pretation as  developed  to  date.  It  is  believed  that  the  Report 
will  furnish  those  interested  in  the  administration  of  the  law, 
or  taking  proceedings  under  the  same,  a  means  of  informa- 
tion and  guidance  which  can  be  easily  and  effectively  used. 

FUNDAMENTAL    DECISIONS. 

The  constitutionality  of  the  Michigan  Law  was  settled  in 
the  case  of  Mackin  vs.  Detroit-Timken  Axle  Company,  Vol. 
22,  Detroit  Legal  News,  588,  the  opinion  being  exhaustive  and 
ably  sustaining  practically  every  feature  of  the  law.  After 
stating  the  facts  in  that  case  and  before  proceeding  to  a  dis- 
cussion and  disposition  of  the  legal  points  raised,  the  Court 
by  way  of  introduction  states  the  controlling  principles: 


xii  MICHIGAN  WORKMEN'S   COMPENSATION  CASES. 

"It  is  to  be  recognized  at  the  outset  that  workmen's 
compensation  legislation  of  this  class,  based  on  the 
economic  principle  of  trade  risk  in  that  personal  injury 
losses  incident  to  industrial  pursuits  are  like  wages  and 
breakage  of  machinery  a  part  of  the  cost  of  production, 
works  fundamental  changes  in  the  familiar  principles 
underlying  and  governing  the  doctrine  of  liability  for 
negligence  as  heretofore  applied  to  the  relation  of 
master  and  servant.  But  it  by  no  means  follows  that 
this  comparatively  recent  and  radical  legislation  upon 
the  subject,  enacted  to  meet  changed  industrial  condi- 
tions and  afford  relief  from  evils  and  defects  which 
had  developed  under  the  old  rules  of  law  in  negligence 
cases  for  personal  injuries  of  employes,  violates  the 
spirit  or  letter  of  our  constitution." 

The  only  remaining  constitutional  objection  was  that  urged 
by  the  City  of  Detroit  and  the  City  of  Sault  Ste.  Marie 
against  the  provision  of  the  Michigan  Act  making  it  manda- 
tory as  to  municipalities,  claiming  that  it  invaded  the  right 
of  local  self-government  extended  to  cities  under  the  consti- 
tution of  the  State;  also  that  it  was  in  conflict  with  the 
charter  provisions  relative  to  making  and  giving  notice  of 
claims  against  cities.  Both  of  the  above  cases  were  decided 
against  the  objecting  cities,  the  question  of  the  constitutional 
right  to  local  self-government  being  fully  discussed  and  dis- 
posed of  in  the  case  of  Mary  Wood  v.  City  of  Detroit,  and  the 
charter  question  in  Purdy  v.  City  of  Sault  Ste.  Marie.  These 
decisions  were  by  the  Supreme  Court  and  in  both  cases  affirm- 
ed the  position  taken  by  the  Board. 

The  question  as  to  when  the  employer  becomes  subject  to 
the  Workmen's  Compensation  Law  is  decided  in  Bernard  v. 
Michigan  United  Traction  Company,  Vol.  22,  Detroit  Legal 
News,  945.  Under  the  Michigan  Act,  which  is  elective,  the 
first  step  to  be  taken  by  the  employer  in  becoming  subject 
to  its  provisions,  is  to  file  with  the  Industrial  Accident  Board 


INTRODUCTION.  xiii 

a  written  acceptance.  The  law  further  provides  for  the  ex- 
amination and  approval  of  acceptances  so  filed,  by  the  Board. 
The  injury  in  this  case  occurred  between  the  time  of  the 
filing  of  the  acceptance  and  its  approval.  The  court  held  that 
the  new  status  created  by  the  Compensation  Law  is  not  estab- 
lished until  tKe  approval  of  the  acceptance  and  that  the  date 
of  such  approval  is  controlling. 

OCCUPATIONAL    DISEASES. 

Adams  v.  Acme  White  Lead  d  Color  Works,  182  Mich.  157, 
was  a  case  of  death  from  lead  poisoning,  the  lead  being  gradu- 
ally absorbed  into  applicant's  system  while  at  work  in  re- 
spondent's plant.  The  body  of  the  Michigan  Act  provides  for 
compensation  in  cases  where  the  employe  receives  aa  personal 
injury,"  while  the  language  used  in  the  title  of  the  Act  is 
"personal  injury  by  accident."  It  was  held  by  the  Supreme 
Court  that  the  law  does  not  cover  occupational  diseases  such 
as  lead  poisoning,  but  must  be  limited  to  personal  injuries 
received  by  accident,  the  restrictive  language  in  the  title  and 
other  matters  pointed  out  in  the  opinion  being  the  basis  for 
this  construction. 

EVIDENCE. 

The  Supreme  Court  has  uniformly  held  that  the  findings 
and' decisions  of  the  Industrial  Accident  Board  as  to  matters 
of  fact  are  conclusive  and  not  subject  to  review  on  appeal,  if 
such  findings  are  supported  by  competent  evidence.  The 
Court  has  also  held  that  the  Board  in  arbitrations  and  hear- 
ings before  it  is  bound  by  the  established  rules  of  evidence, 
intimating  however  that  such  rules  perhaps  should  not  be  as 
strictly  applied  as  in  regular  court  proceedings.  Hearsay 
evidence  is  discussed  in  some  of  the  cases  and  the  weakness 
and  unreliability  of  that  class  of  testimony  pointed  out.  How- 
ever, the  Court  has  distinctly  held  that  an  award  is  not  to  be 
reversed  because  incompetent  or  hearsay  evidence  was  admitted 
at  the  hearing,  if  enough  competent  evidence  is  found  to  rea- 


xiv  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

sonably  sustain  the  decision.  The  cases  touching  upon  this 
subject  will  be  readily  found  by  referring  to  the  index  of  this 
Report  under  the  head  of  "Evidence,"  as  will  another  class 
of  cases  involving  the  question  of  circumstantial  evidence 
where  there  is  no  eye  witness  to  the  accident  and  no  one  hav- 
ing personal  knowledge  of  facts  upon  which  the  decision  of 
the  case  depends. 

The  Regents  of  the  University  of  Michigan  and  the  State 
Board  of  Agriculture  are  constitutional  bodies  not  subject  to 
Legislative  control,  and  therefore  not  subject  to  the  Compen- 
sation Law  without  filing  an  election  to  come  under  its  pro- 
visions. Agler  v.  Michigan  Agricultural  College,  181  Mich. 
559.  The  Regents  of  the  University  of  Michigan  have  filed 
their  acceptance  of  the  Compensation  Law  and  are  operating 
under  the  same.  No  acceptance  has  been  filed  by  the  State 
Board  of  Agriculture.  There  are  now  in  effect  the  acceptances 
of  17,000  employers  of  labor  covering  more  than  700,000 
workers  in  the  State.  The  amounts  paid  for  compensation  to 
injured  workers  and  their  dependents,  exclusive  of  medical 
and  hospital  service  furnished,  approximate  one  and  a  half 
millions  of  dollars  yearly. 

INDUSTRIAL  ACCIDENT  BOARD. 

JOHN  E.  KINNANE,  Chairman, 
THOMAS  B.  GLOSTER, 
JAMES  A.  KENNEDY. 


STATE  OF  MICHIGAN 

INDUSTRIAL  ACCIDENT  BOARD. 

DECISIONS  AND  OPINIONS  OF  THE  BOAKD  IN  WORK- 
MEN'S COMPENSATION  CASES  WITH  THE  DECI- 
SIONS AND  OPINIONS  OF  THE  SUPREME 
COURT  IN  ALL  ADJUDGED  CASES. 


ARCHIBALD  SCOTT, 

Applicant, 
vs. 

WHAT  CHEER  COAL  COMPANY, 
Respondent. 

HERNIA — RESULT  OF  ACCIDENT  OR  DISEASE. 

Applicant  was  employed  as  driver  by  respondent  in  its  coal  mine. 
The  cars  driven  by  him  ran  on  tracks  and  were  frequently  liable 
to  jump  off.  When  this  occurred,  it  was  the  duty  of  the  driver  to 
get  the  car  back  on  the  track.  While  attempting  to  lift  a  car 
back  onto  the  track,  applicant  suffered  a  strain  which  resulted 
in  an  inguinal  hernia.  He  was  awarded  compensation  for  four 
weeks,  by  an  arbitration  committee,  together  with  hospital  and 
medical  expenses.  The  question  involved  is,  whether  the  hernia 
should  be  classed  as  an  accident  within  the  meaning  of  the  Com- 
pensation Act. 

HELD:  1.  That  although  the  strain  was  received  while  in  the  per- 
formance of  applicant's  ordinary  work,  it  was  the  result  of  an 
extraordinary  exertion  and  therefore  should  be  classed  as  an 
accident  within  the  meaning  of  the  Act. 

2.     That   before   the   workman   is    entitled    to   compensation   in 


2  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

case  of  hernia,  it  must  be  shown  to  have  the  essentials  of  an 
accidental  injury,  and  it  must  arise  out  of  the  work,  as  from  a 
strain  or  some  other  occurence.  Hernia  occurring  without  any 
strain  and  without  the  elements  that  are  necessary  to  constitute 
an  accident  would  not  come  within  the  meaning  of  the  law. 

Appeal  of  What  Cheer  Coal  Company  from  the  decision  oJ 
an  arbitration  committee  awarding  compensation  to  Archi- 
bald Scott  for  an  injury  sustained  by  him  while  in  respond- 
ent's employ.  At  the  hearing  of  this  cause  on  review  a  gen- 
eral invitation  was  extended  to  all  interested  in  the  subject 
of  hernia  to  participate  in  such  hearing  and  file  briefs.  The 
case  was  exhaustively  argued  and  a  large  number  of  able 
briefs  filed,  the  purpose  of  the  general  hearing  being  to  con- 
sider and  determine  the  status  of  hernia  cases  under  the 
Workmen's  Compensation  Law.  It  was  contended  on  behalf 
of  respondent  that  hernia  should  be  classed  as  an  accident 
only  in  a  few  rare  cases. 

Opinion  by  the  Board : 

The  applicant,  Archibald  Scott,  was  employed  as  a  driver 
by  respondent  in  its  coal. mine,  and  as  such  it  was  his  duty  to 
drive  trains  of  coal  cars  drawn  by  mules  through  the  various 
passages  and  entries  of  the  mine,  the  cars  running  on  an  iron 
track.  It  was  quite  a  common  occurrence  for  one  or  more  of 
such  cars  to  jump  the  track,  and  in  such  case  it  was  the  duty 
of  the  driver  to  get  the  car  back  on  to  the  track  and  proceed 
with  his  trip.  Each  of  the  empty  cars  weighed  about  one 
thousand  pounds.  On  March  23,  1914,  while  the  applicant 
was  so  employed,  one  of  the  cars  left  the  track  and  became 
wedged  in  between  the  transfer  rail  and  the  straight  rail  of 
the  track.  Applicant  attempted  to  lift  the  car  back  on  to  the 
track  and  while  so  doing  felt  a  strain  in  the  abdomen.  It 
pained  him  for  a  few  minutes  and  then  seemed  to  go  away. 
That  night  when  changing  his  clothes  at  the  wash  shanty  he 
noticed  a  small  swelling,  which  turned  out  to  be  an  inguinal 
hernia.  He  went  hack  to  work  on  the  following  day,  which 
was  Tuesday,  and  continued  working  until  Friday  night  when 


ARCHIBALD  SCOTT  vs.  WHAT  CHEER  COAL  COMPANY.       3 

he  went  to  a  doctor  for  an  examination.  The  last  two  days 
that  he  worked  it  distressed  him  considerably.  On  Saturday 
lie  reported  the  matter  to  the  company  and  on  the  following 
day  submitted  to  an  operation  which  was  successful  and  re 
suited  in  a  complete  cure.  The  arbitration  committee  awarded 
the  applicant  compensation  for  four  weeks,  together  with 
hospital  and  medical  expenses.  The  applicant  testified  that 
lie  noticed  the  pain  directly  at  the  time  he  was  lifting  on  the 
car  while  trying  to  replace  it  on  the  track,  that  he  examined 
himself  when  he  went  to  the  wash-house  that  evening  and 
found  the  swelling,  and  that  it  increased  in  size  during  the 
three  or  four  days  following  until  he  went  to  a  doctor.  He 
further  testified  that  in  replacing  a  car  on  the  track  it  was 
necessary  to  lift  with  all  his  might.  That  prior  to  lifting  on 
the  day  in  question  there  was  no  swelling  or  appearance  of 
hernia. 

At  the  time  of  rehearing  of  this  case,  a  general  invitation 
was  given  to  those  interested  in  the  general  subject  of  hernia 
to  participate  in  the  rehearing  and  to  file  briefs.  The  case 
was  exhaustively  argued  and  a  number  of  able  briefs  filed,. 
the  purpose  of  the  general  hearing  being  to  consider  and  de- 
termine in  a  general  way  the  status  of  hernia  cases  under  the 
Workmen's  Compensation  Law. 

It  is  contended  that  putting  derailed  cars  back  upon  the 
n-ack  is  a  part  of  the  ordinary  work  of  a  driver,  and  that  a 
hernia  resulting  from  the  applicant's  ordinary  work  is  not  an 
accident  within  the  meaning  of  the  law.  It  is  also  contended 
that  inguinal  hernia  in  a  large  majority  of  cases  is  not  the 
result  of  accident,  but  comes  from  bodily  weakness  which  is 
usually  congenital.  These  claims  were  strenuously  urged  and 
have  been  given  careful  consideration  and  investigation  by  the 
Board. 

In  the  opinion  -of  the  Board  it  is  fairly  shown  that  the  ap- 
plicant, while  exerting  himself  to  replace  the  car  upon  the 
track,  sustained  a  strain  which  produced  the  hernia;  that  he 
was  not-  subjected  to  any  external  violence;  and  that  the  her- 
nia was  brought  on  by  lifting  on  the  car,  something  which 


4  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

he  was  frequently  required  to  do  in  the  course  of  his  work. 
We  do  not  think  the  mere  fact  that  the  strain  was  received  in 
performing  his  ordinary  work  makes  the  occurrence  any  less 
an  accident.  Almost  the  precise  question  was  under  consid- 
eration in  the  case  of  Clover,  Clayton  &  Company  vs.  Hughes, 
by  the  House  of  Lords,  3  B.  W.  C.  C.  275,  the  date  of  the  de- 
cision being  March  14,  1910.  The  alleged  accident  in  that 
case  was  the  rupture  of  an  aneurism  while  the  employe  was 
engaged  in  doing  his  ordinary  work,  and  it  was  contended 
that  because  nothing  unusual  happened  in  connection  with 
his  work  that  it  was  not  an  accident  within  the  meaning  of 
the  British  Workmen's  Compensation  Law.  We  quote  from 
the  prevailing  opinions  in  the  above  case: 

"I  do  not  think  that  we  should  attach  any  importance  to  the  fact 
that  there  was  no  strain  or  exertion  out  of  the  ordinary.  *  *  *  *  If 
the  degree  of  exertion  beyond  what  is  usual  had  to  be  considered  in 
these  cases,  there  must  be  some  standard  of  exertion,  varying  in 
every  trade.  Nor  do  I  think  we  should  attach  any  importance  to  the 
fact  that  this  man's  health  was  as  described.  If  the  state  of  his 
health  had  to  be  considered,  there  must  be  some  standard  of  health, 
varying,  I  suppose,  with  men  of  different  ages.  An  accident  arises  out 
of  the  employment  when  the  required  exertion  producing  the  accident 
is  too  great  for  the  man  undertaking  the  work,  whatever  the  degree 
of  exertion  or  the  condition  of  health." 

Again  we  quote  from  opinion  on  page  280: 

"Certainly  it  was  an  'untoward  event.'  It  was  not  designed.  It 
was  unexpected  in  what  seems  to  me  the  relevant  sense,  namely,  that 
a  sensible  man  who  knew  the  nature  of  the  work  would  not  have  ex- 
pected it.  I  cannot  agree  with  the  argument  presented  to  your  Lord- 
ships that  you  are  to  ask  whether  a  doctor  acquainted  with  the  man's 
condition  would  have  expected  it.  Were  that  the  right  view  then  it 
would  not  be  an  accident  if  a  man  very  liable  to  fainting  fits  fell  in  a 
faint  from  a  ladder  and  hurt  himself.  No  doubt  the  ordinary  acci- 
dent is  associated  with  something  external;  the  bursting  of  a  boiler, 
or  an  explosion  in  a  mine,  for  example.  But  it  may  be  merely  frOm 
the  man's  own  miscalculation,  such  as  tripping  and  falling.  Or  it 
may  be  due  both  to  internal  and  external  conditions,  as  if  a  seaman 
were  to  faint  in  the  rigging  and  tumble  into  the  sea.  I  think  it  may 
also  be  something  going  wrong  within  the  human  frame  itself,  such 


ARCHIBALD  SCOTT  vs.  WHAT  CHEER  COAL  COMPANY.       5 

as  the  straining  of  a  muscle,  or  the  breaking  of  a  blood  vessel.  If  that 
occurred  when  he  was  lifting  a  weight  it  would  be  properly  described 
as  an  accident." 

Again  we  quote  from  the  opinion  on  pages  283  and  284: 

"The  man  'broke  part  of  his  body,'  to  borrow  Lord  Robertson's  ex- 
pression in  Brintons  v.  Turvey,  7  W.  C.  C.  1.  And  he  certainly  did 
not  mean  to  do  it.  *  *  *  *  The  fact  that  the  man's  condition  pre- 
disposed him  to  such  an  accident  seems  to  me  to  be  immaterial.  The 
work  was  ordinary  work;  but  it  was  too  heavy  for  him.  *  *  *  *  The 
fact  that  the  result  would  have  been  expected,  or  indeed  contemplated 
as  a  certainty,  by  a  medical  man  of  ordinary  skill  if  he  had  diagnosed 
the  case,  is,  I  think,  nothing  to  the  purpose.  An  occurrence,  I  think, 
is  unexpected,  if  it  is  not  expected  by  the  man  who  suffers  by  it." 

In  Fenton  vs.  J.  Thorley  &  Co.  Ltd.  5  W.  0.  C.  (the  same 
being  a  House  of  Lords  case),  it  is  said  on  page  4: 

"If  a  man,  in  lifting  a  weight  or  trying  to  move  something  not 
easily  moved,  were  to  strain  a  muscle,  or  rick  his  back,  or  rupture 
himself,  the  mishap  in  ordinary  parlance  would  be  described  as  an 
accident.  Anybody  would  say  that  the  man  had  met  with  an  acci- 
dent in  lifting  a  weight,  or  trying  to  move  something  too  heavy, 
for  him." 

Bradbury  in  his  work  on  Workmen's  Compensation,  Page 
367,  Vol.  I,  Second  Edition,  stated  the  general  rule  as  follows: 

"Rupture  caused  by  overexertion  in  the  course  of  a  man's  work  is 
an  accident  within  the  meaning  of  the  Compensation  Act." 

Citing  a  large  number  of  English  and  American  Authorities. 
The  same  general  rule  is  laid  down  in  Boyd's  Workmen's 
Compensation  on  Page  1043.  It  has  also  been  adopted  by  the 
United  States  Government  in  the  administration  of  the  Com- 
pensation Law  applicable  to  government  employes,  the  prin- 
ciple being  stated  as  follows: 

"A  person  whose  duty  requires  him  to  lift  heavy  weights  may,  in 
so  doing,  overstrain  himself  and  cause  a  rupture.  Even  though  the 
rupture  be  due,  in  some  degree,  to  the  naturally  feeble  condition  of 
the  employee,  he  would,  without  doubt,  be  entitled  to  the  benefits  of 


6  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

the  act."     See  Opinions  of  Solicitor  for  Department  of  Commerce  and 
Labor,  Page  151. 

We  do  not  overlook  the  medical  evidence  introduced  on  the 
hearing  to  the  effect  that  hernia  should  be  classed  as  an  ac- 
cident only  in  a  few  rare  cases.  We  think  that  the  weight 
of  authority  in  workmen's  compensation  cases  is  clearly 
against  such  theory,  and  that  the  general  rule  established  in 
the  adjudicated  cases  and  the  text  books  is  otherwise.  The 
Board  is  of  the  opinion  that  there  are  many  cases  of  hernia 
which  occur  under  such  circumstances  that  they  could  not  be 
considered  the  result  of  accident.  But  we  think  it  would  be 
neither  possible  nor  practicable  to  enumerate  such  conditions, 
as  each  case  would  have  to  depend  upon  its  own  peculiar  facts 
and  circumstances,  and  these  may  vary  as  widely  as  the  field 
of  human  experience,  depending  upon  things  that  could  not 
be  reasonably  foreseen  or  predetermined  by  rule. 

It  seems  clear  that  before  the  workman  is  entitled  to  com- 
pensation in  case  of  hernia,  it  must  be  shown  to  have  the  es- 
sentials of  an  accidental  injury,  and  it  must  arise  out  of  the 
work,  as  from  a  strain  or  some  other  occurrence.  Hernia  oc- 
curring without  any  strain  and  without  the  elements  that 
are  necessary  to  constitute  an  accident  would  not  come  within 
the  meaning  of  the  law. 

The  award  of  the  committee  on  arbitration  is  affirmed. 


HUGH  SHAFER  vs.  PARKE,  DAVIS  &  COMPANY. 


HUGH   SHAFER. 

Applicant, 
vs. 
PARKE,  DAVIS  &  COMPANY, 

Respondent. 

FARM  LABORERS — SUFFICIENT  NOTICE. 

Respondent  drug  company  maintained  a  farm  for  the  purpose  of 
raising  horses,  guinea  pigs,  etc.,  which  are  used  for  the  purpose 
of  obtaining  anti-toxins,  serums,  and  vaccines.  Applicant,  while 
employed  on  this  farm,  was  kicked  in  the  thigh  by  a  horse  and 
received  an  injury  resulting  in  a  permanent  partial  disability. 
Compensation  was  denied  on  the  ground  that  farm  laborers  do 
not  come  within  the  benefits  of  the  act,  and  that  applicant  failed 
to  give  notice  of  his  injury  within  the  required  time. 

HELD:  1.  That  the  Act  does  not  exclude  farmers  from  accept- 
ing the  provisions  of  the  law,  but  exempts  them  from  its  opera- 
tion merely  in  the  sense  that  they  suffer  no  harm  by  not  coming 
under  it. 

2.  The  work  carried  on  at  respondent's  farm  was  in  reality  a 
part  of  its  general  manufacturing  business. 

3.  The  fact  that   the  injury  was  reported   to  the  farm  super- 
intendent within  a  few  days,  and  claim  was  made  for  compensa- 
tion in  a  letter  to  the  company  within  the  time  required  by  law, 
was  sufficient  notice  of  applicant's  claim. 

Appeal  of  Hngh  Shafer  from  the  decision  of  an  arbitration 
committee  denying  compensation  for  injuries  received  while 
applicant  was  working  on  a  farm  owned  by  Parke,  Davis  & 
Company.  Decision  reversed  and  compensation  ordered  paid. 

Opinion  by  the  Board: 

Parke,  Davis  &  Company,  the  respondent,  is  a  corporation 
organized  under  the  laws  of  the  State  of  Michigan,  its  char- 
acter and  scope  being  set  forth  in  the  articles  of  incorporation 
as  follows: 

"The  purpose  or  purposes  of  this  corporation  are  as  follows:     The 


8  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

manufacture  and  sale  of  chemicals  and  Pharmaceuticals;  the  propaga- 
tion and  sale  of  serums,  vaccines,  toxins,  anti-toxins,  and  biological 
and  bacteriological  products  generally;  the  printing,  publication  and 
sale  of  medicinal  and  pharmaceutical  pamphlets,  books  and  magazines, 
and  all  business  incident  to  such  manufacture,  propagation,  printing, 
publication  and  sale." 

The  business  in  which  respondent  is  actually  engaged 
under  its  corporate  charter  is  set  forth  in  some  detail  in  its 
brief  filed  in  this  case,  as  follows: 

"Incidental  to  the  manufacture  and  sale  of  said  chemicals  and 
Pharmaceuticals,  respondent  is  extensively  engaged  in  the  business 
of  manufacturing  machines,  glass  ware,  boxes,  cartons,  display  cards, 
etc.  Respondent  also  maintains  a  large  printing  plant,  garage,  fire 
department,  biological  laboratory,  medicinal  research  department,  ex- 
perimental department,  auditing  department,  law  department,  and, 
last  but  not  least,  a  farm." 


The  so-called  farm  of  respondent  consists  of  a  tract  of  land 
near  Rochester,  Michigan,  where  about  40  hands  are  employed. 
On  this  farm  are  kept  from  200  to  300  horses,  about  2,500 
guinea  pigs,  10  cows,  and  a  considerable  number  of  rabbits 
and  other  animals. 

The  principal  output  of  the  farm  consists  of  toxins,  anti- 
toxins, serums  and  vaccines  produced  from  the  animals  afore- 
said by  inoculation,  treatments  and  sundry  processes.  These 
were  mainly  shipped  to  the  Detroit  plant  of  the  company, 
which  is  a  large  manufacturing  and  commercial  plant,  em- 
ploying over  2,000  men,  where  they  are  prepared  for  market 
and  sent  out  to  the  trade  as  part  of  the  regular  business  of 
the  company. 

The  applicant  was  injured  while  working  on  this  farm,  so- 
called,  by  a  kick  from  a  horse  which  fractured  the  neck  of  the 
left  femur,  resulting  in  what  apparently  is  permanent  partial 
disability.  Part  of  his  work  on  the  farm  was  taking  caro  of 
the  horses,  preparing  them  for  operations  and  assisting  the 
operator.  The  ten  buildings  on  the  farm  included  an  operat- 
ing room  and  a  laboratory.  Crops  were  raised  on  the  land, 


HUGH  SHAFER  vs.  PARKE,  DAVIS  &  COMPANY.  9 

consisting  of  grain  and  hay,  the  same  being  used  generally  in 
feeding  and  caring  for  the  animals. 

Its  acceptance  of  the  Workmen's  Compensation  Law  was 
filed  by  respondent  on  August  31,  1912,  and  approved  by  the 
Board  on  September  12th  of  the  same  year,  the  same  being  the 
usual  unconditional  acceptance  of  the  provisions  of  the  Act. 
It  is  contended  that  applicant  was  working  for  respondent  at 
the  time  of  the  injury  as  a  farm  laborer  and  that  the  Law, 
together  with  election  of  respondent  to  come  under  it,  did  not 
include  respondent's  farm  laborers  within  its  benefits.  It  is 
further  contended  that  applicant  failed  to  give  notice  of  in- 
jury and  to  make  claim  for  compensation  within  the  times 
required  by  the  Act,  and  for  these  reasons  must  be  denied  com- 
pensation. 

The  only  reference  to  farm  laborers  in  the  Act  is  found  in 
Section  2  of  Part  I,  and  is  merely  a  declaration  that  Section 
1,  which  repeals  the  special  defenses,  shall  not  apply  to 
actions  for  the  recovery  of  damages  by  farm  laborers.  This 
does  not  exclude  farmers  from  coming  under  the  Law,  but 
exempts  them  from  its  operation  merely  in  the  sense  that  they 
suffer  no  harm  from  not  coming  under  it.  The  farmer  may 
come  under  the  Law  by  filing  his  acceptance  if  he  so  desires,, 
and  if  such  acceptance  is  unconditional  his  employes  would 
be  entitled  to  compensation  in  case  of  injury  the  same  as  if 
he  were  engaged  in  manufacturing,  mining,  or  any  other  bus- 
iness. The  contention  that  he  may,  if  he  choose,  file  an  ac- 
ceptance for  the  benefit  of  only  a  part  of  his  men,  because 
exempt  from  the  provisions  of  the  Law  in  the  above  sense, 
would  not  change  the  situation  even  if  sustained,  for  the  rea- 
son that  the  acceptance  of  the  respondent  in  this  case  is  un- 
conditional and  does  not  assume  to  exclude  any  of  its  em- 
ployes. Also  for  the  further  reason  that  a  manufacturing 
and  commercial  corporation  such  as  respondent  could  not 
well  be  classed  as  a  farmer. 

Respondent's  claim  must  fail  for  another  reason.  The  work 
carried  on  at  the  so-called  farm  constituted  a  part  of  the  man- 


10 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


ufacturing  business  of  the  company.  Keeping  the  animals 
and  also  raising  grain  and  fodder  for  their  support  are,  we 
think,  a  part  of  the  process  in  the  manufacture  and  produc- 
tion of  serums,  toxins,  anti-toxins  and  vaccines.  If  these 
animals  were  maintained  in  a  part  of  respondent's  plant  in 
the  city  of  Detroit,  and  vaccines,  toxins  and  serums  pro- 
duced from  them,  it  would  be  clearly  considered  a  part  of 
the  general  process  of  manufacture.  The  fact  that  this  wrork 
was  carried  on  at  another  place  outside  of  the  city,  where  bet- 
ter facilities  and  conditions  could  be  obtained,  does  not  change 
its  character,  and  the  further  fact  that  the  company  could 
there  grow  grain  and  hay  for  the  support  of  its  animals, 
makes  it  no  less  a  part  of  their  business  of  manufacturing 
and  marketing  drugs  and  chemical  products. 

The  contention  that  notice  of  the  injury  was  not  given  and 
that  claim  for  compensation  was  not  made  within  the  times 
required,  are  not  sustained  by  the  evidence.  The  injury  was 
reported  to  Dr.  Wilson,  the  superintendent  of  the  farm,  a 
few  days  after  it  occurred,  and  claim  was  made  for  compensa- 
tion from  the  company  by  letter  within  the  time  required  by 
Law.  The  fact  that  a  formal  claim  on  the  blank  of  the  Board 
was  later  served  would  not  change  the  situation. 

The  decision  of  the  committee  on  arbitration  is  reversed 
and  compensation  is  awarded  to  the  applicant. 


ASAPH  HILLS  vs.  OVAL  WOOD  DISH  COMPANY.  11 


ASAPH  HILLS, 

Applicant, 
vs. 
OV.AL  WOOD  DISH  COMPANY 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 

MUTUAL  INSURANCE  COMPANY. 

Respondents. 

INJURY — REFUSAL  TO  HEAL  WITHIN  REASONABLE  TIME. 
Applicant,  while  working  at  an  edging  machine  in  respondent's  mill, 
on  May  13,  1914,  received  a  severe  injury  to  his  right  arm.  Under 
an  agreement  with  respondent  he  was  paid  compensation  for  the 
injury  without  objection  until  Dec.  17,  1914,  at  which  time 
respondent  filed  a  petition  to  stop  compensation,  claiming  that 
the  refusal  of  the  wound  to  heal  was  the  result  of  a  venereal 
disease  with  which  applicant  was  afflicted  and  that  in  a  normally 
healthy  man  the  wound  should  have  healed  within  fourteen 
weeks. 

HELD:  That  the  Compensation  Law  does  not  make  any  exception 
for  cases  of  injury  to  men  whose  health  is  impaired  or  below  the 
normal  standard.  Neither  does  it  except  from  its  benefits  the  man 
who  carried  in  his  body  a  latent  disease  which  in  case  of  injury 
may  retard  or  prevent  recovery.  It  applies  to  every  man  who 
suffers  disability  from  accidental  injury,  and  does  not  exclude 

the  weak  or  less  fortunate  physically. 

« 

Petition  of  Oval  Wood  Dish  Company  to  be  relieved  from 
payment  of  further  compensation  to  Asaph  Hills,  on  the 
grounds  that  applicant's  present  condition  is  due  to  a  disease 
other  than  his  injury.  Petition  denied. 

Opinion  by  the  Board : 

The  applicant  was  a  laborer  in  the  saw-mill  of  the  Oval 
Wood  Dish  Company  of  Traverse  City,  and  on  May  13,  1914, 
was  injured  by  having  his  right  arm  caught  in  the  gear  of  an 
edger.  The  part  of  the  arm  injured  was  above  the  elbow.  The 


12 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


flesh  was  bruised  and  torn,  and  the  front  part  of  the  arm  de- 
nuded of  its  skin,  exposing  the  blood  vessels  and  muscles  un- 
derneath. On  June  8,  1914,  an  agreement  in  regard  to  com- 
pensation was  made  providing  for  the  payment  of  compensa- 
tion at  f  5.25  per  week  during  the  period  of  disability,  and  the 
same  was  approved  by  the  Board.  The  injury  did  not  respond 
readily  to  treatment,  was  stubborn  in  healing,  and  the  appli- 
cant has  been  continuously  disabled  since  the  time  of  the  acci- 
dent, and  the  disability  still  continues,  although  there  has 
been  some  improvement  in  the  arm. 

On  December  17,  1914,  respondents  filed  a  petition  to  stop 
compensation,  claiming  that  applicant's  disability  was  due  to 
a  venereal  disease  and  not  to  the  injury.  This  petition  was 
denied,  and  on  March  1,  1915,  respondents  again  filed  a  peti- 
tion with  the  Board  asking  to  be  relieved  from  further  liabil- 
ity to  pay  compensation  for  the  reason  that  a  wound  such  as 
applicant  received  should  be  completely  healed  within  14 
weeks  from  the  time  said  wound  was  received,  that  number  of 
weeks  being  the  maximum  time  for  such  a  wound  to  heal ;  and 
that  the  continuance  of  the  disability  beyond  said  time  was 
due  to  a  diseased  condition  of  applicant's  body,  and  that  such 
disease  is  the  cause  of  the  wound  refusing  to  heal  within  ap- 
proximately 14  weeks.  In  other  words,  that  the  period  of 
time  during  which  compensation  is  to  be  paid  should  be  fixed 
by  the  estimate  of  physicians  as  to  the  time  in  which  a  normal 
person  should  recover  from  such  an  injury,  rather  than  the 
fact  that  the  disability  continued  and  the  injured  man  did  not 
so  recover. 

The  evidence  in  this  case  does  not  suggest  any  active  dis- 
ease in  applicant's  body  prior  to  the  injury,  nor  does  it  dis- 
close any  substantial  evidence  of  the  existence  of  a  bodily 
disease  except  the  fact  that  the  wound  did  not  readily  heal 
and  that  symptoms  led  the  physicians  to  suspect  syphilis  in 
the  blood,  together  with  some  evidence  that  a  Wasserman 
Test  of  the  blood  was  had  and  that  such  test  showed  the  pres- 
ence of  syphilis.  In  this  connection  it  should  be  said  that  the 
essential  part  of  the  evidence  as  to  the  Wasserman  Test  is 


ASAPH  HILLS  vs.  OVAL  WOOD  DISH  COMPANY.  13 

hearsay,  as  it  consisted  merely  of  an  unsworn  report  sent  by 
mail  from  the  Lincoln-Gardner  Laboratories  in  Chicago,  where 
a  sample  of  applicant's  blood  had  been  sent  to  be  tested. 

The  legal  question  presented  by  the  petition  is  an  import- 
ant one.  If  the  correct  rule  for  determining  the  length  of 
time  compensation  for  disability  should  be  paid  in  case  of  an 
injury  of  this  general  character  is  found  to  be  the  one  con- 
tended for  by  respondents,  the  result  will  be  far-reaching.  The 
question  then  to  be  determined  in  cases  of  continuing  disabil- 
ity would  be  whether  the  injury  should  have  healed,  or  whether 
it  should  have  healed  more  quickly  that  it  did,  instead  of  the 
actual  resulting  disability.  Instead  of  the  plain  question  of 
fact  as  to  the  nature  and  duration  of  the  disability  which  the 
injured  man  actually  suffered,  it  would  present  for  decision 
the  question  as  to  how  much  he  should  have  suffered,  and  how 
soon  he  should  have  recovered,  upon  the  theory  that  only  a 
part  of  the  disability  was  due  to  the  injury  and  the  remaining 
part  due  to  disease.  In  the  opinion  of  the  Board,  the  respond- 
ent's contention  must  fail.  The  Compensation  Law  does"  not 
fix  any  standard  of  physical  health,  nor  does  it  make  any  ex- 
ceptions for  cases  of  injuries  to  men  whose  health  is  impaired, 
or  below  the  normal  standard.  Neither  does  it  except  from 
the  benefits  of  the  Law  the  man  who  carries  in  his  body  a 
latent  disease  which,  in  case  of  injury,  may  retard  or  prevent 
recovery.  The  Law  by  its  expressed  terms  applies  to  every 
man  who  suffers  disability  from  injury.  It  does  not  exclude 
the  weak  nor  the  less  fortunate  physically,  but  was  intended 
for  the  working  men  of  the  state  generally,  taken  as  they  are. 

The  authorities  seem  to  be  strongly  against  respondents' 
contention  : 

Boyd's  Workmen's  Compensation,  Sec.  463. 
Bradbury's  Workmen's  Compensation,  2d  Ed.  385  and  386. 
Willoughby  vs.  Great  Western  Railway  Company,  6  W.  C.  C.  28. 
Ystradowen  Colliery  vs.  Griffiths,  2  B.  W.  C.  C.  359. 

This  is  not  a  case  where  the  workman  was  suffering  from 
some  active  disease  or  injury  at  the  time  of  the  accident,  as 
applicant  was  apparently  in  good  health  in  every  respect  up 


14  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

to  the  time  he  received  the  injury.  The  difficulties  of  proving 
the  reasonable  duration  of  disability  which  should  result  from 
an  accident  is  discussed  to  some  extent  in  the  English  cases 
above  cited,  pointing  out  the  fact  that  Ward  vs.  London  and 
Northwestern  Railway  Company,  3  W.  C.  C.  193,  which  at- 
tempted to  make  such  determination,  is  no  longer  regarded 
as  authority.  They  further  suggest  the  danger  of  attempting 
to  fix  the  duration  of  disability  on  medical  prognosis  and 
opinion  evidence,  when  it  is  conceded  by  the  medical  profes 
sion  itself  that  it  has  yet  much  to  learn  in  such  matters. 
The  petition  of  respondents  is  dismissed. 


A.  M.  WORDEN, 

Applicant, 
vs. 
COMMONWEALTH  POWER  COMPANY, 

Respondent. 

SLIPPING  ON  ICE — INJURY  NOT  ARISING  OUT  OF  EMPLOYMENT. 

The  applicant  was  employed  by  the  Commonwealth  Power  Company 
to  repair  and  change  its  lights  in  the  city  of  Jackson.  He  used 
his  own  horse  and  wagon  in  doing  the  work,  keeping  the  horse 
in  a  barn  on  his  own  premises,  and  being  paid  for  his  services  and 
that  of  his  horse  and  wagon  the  sum  of  $70  per  month.  On  the 
date  of  the  injury,  applicant  had  finished  his  dinner  and  started 
for  the  barn  to  hitch  up  his  horse  and  complete  his  circuit  of 
lights  which  it  was  his  duty  to  care  for  daily,  he  having  no 
special  hours  of  employment  but  a  certain  circuit  to  cover  each 
day.  At  a  point  about  half  way  between  the  house  and  barn  he 
slipped  and  fell  on  some  ice  and  sustained  serious  and  permanent 
injuries. 

HELD:  That  slipping  and  falling  on  ice  is  one  of  the  most  common 
risks  to  which  the  public  is  exposed,  and  is  encountered  by  people 


A.  M.  WORDEN  vs.  COMMONWEALTH  POWER  COMPANY.        15 

generally  irrespective  of  their  employment,  and  that  the  accident 
under  the  facts  in  this  case  did  not  arise  out  of  the  employment. 

Application  of  A.  M.  TVorden  to  the  Industrial  Accident 
Board  for  compensation  for  injuries  claimed  to  have  been  re- 
ceived while  in  the  employ  of  the  Commonwealth  Power  Com- 
pany. Application  denied. 

Opinion  by  the  Board: 

The  applicant  claims  compensation  in  this  case  for  an  in- 
jury received  by  slipping  and  falling  on  some  ice  on  his  own 
premises,  the  ice  in  question  being  situated  about  half  way 
between  his  house  and  barn.  He  was  employed  by  respondent 
repairing  and  changing  lights  in  its  lighting  system  in  the 
city  of  Jackson,  and  in  doing  this  work  he  used  his  own  horse 
and  wagon,  which  were  kept  on  his  own  premises  in  the  barn 
in  question.  He  received  |70  per  month  for  his  work,  and  for 
the  use  of  his  horse  and  wagon,  and  had  been  engaged  in  this 
work  for  respondent  for  many  years.  He  was  71  years  of  age 
at  the  time  of  the  accident.  The  sole  question  in  this  case  is 
one  of  law,  the  facts  being  undisputed. 

On  the  day  of  the  accident,  the  applicant  had  finished  his 
dinner  and  started  to  go  from  his  house  to  the  barn  for  the 
purpose  of  hitching  up  his  horse  to  go  out  and  complete  the 
circuit  of  lights  in  the  city  which  it  was  his  duty  to  care  for 
daily.  At  a  point  about  half  way  between  the  house  and  barn 
he  slipped  and  fell  upon  some  ice,  which  had  accumulated, 
and  sustained  serious  injury.  Did  this  injury  arise  in  the 
course  of  his  employment?  This  question  brings  us  very  near 
to  the  border  line  of  doubt.  It  is  contended  that  going  from 
the  house  to  the  barn  in  this  case  should  be  governed  by  the 
same  rule  that  is  applied  to  a  workman  going  from  his  house 
to  the  shop  or  place  of  his  employment,  and  that  applicant's 
employment  did  not  commence  until  he  reached  the  barn. 
Also,  the  fact  that  the  distance  between  the  house  and  barn 
in  this  case  was  small  does  not  materially  change  the  situa- 
tion, as  the  principle  would  be  the  same  if  the  barn  was 


16 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


situated  in  the  next  block,  or  several  blocks  away  from  appli- 
cant's house.  On  the  other  hand,  it  is  contended  that  the  ap- 
plicant had  no  stated  hours  of  labor;  that  he  had  a  certain 
circuit  of  lights  to  care  for  each  day,  and  was  in  the  service  of 
his  employer  throughout  the  day  until  such  duties  were  com- 
pleted, and  that  eating  his  dinner  and  feeding  his  horse  were 
mere  incidents  of  such  employment. 

The  more  serious  question  in  the  case  is,  did  the  accident 
arise  out  of  applicant's  employment?  Under  the  language  of 
the  statute,  two  conditions  must  be  present  to  entitle  the  in- 
jured man  to  compensation,  viz.,  the  injury  must  have  hap- 
pened "in  the  course  of  his  employment,"  and  it  must  also 
"arise  out  of  his  employment."  The  fact  that  it  occurred  in 
the  course  of  the  employment  merely,  if  it  be  a  fact,  is  not 
enough  to  entitle  him  to  compensation.  It  must  also  appear 
that  the  injury  "arose  out  of  the  employment,"  and  was  from 
a  risk  reasonably  incident  to  such  employment,  as  distin- 
guished from  risks  to  which  the  general  public  is  exposed.  To 
illustrate:  Falling  from  his  wagon,  or  receiving  an  electric 
shock,  would  constitute  injuries  arising  from  the  risks  inci- 
dent to  the  emiployment.  Many  other  examples  might  be 
given.  These  would  be  risks  to  which  he  was  peculiarly  ex- 
posed by  his  employment.  On  the  other  hand,  it  may  be  fairly 
said  that  one  of  the  most  common  risks,  to  which  the  general 
public  is  exposed  is  that  of  slipping  and  falling  upon  the  ice. 
This  risk  is  encountered  by  people  generally,  irrespective  of 
their  employment,  particularly  so  when  the  accident  happens 
to  the  party  injured  while  he  is  walking  on  his  own  premises. 
It  is  the  opinion  of  the  board  that  when  a  man  is  injured,  as 
in  this  case,  by  falling  on  the  ice  in  his  own  yard,  such  injury 
does  not  arise  out  of  the  peculiar  character  of  his  employ- 
ment, but  from  a  condition  and  danger  that  is  common  to  all. 
It  follows  from  this  that  applicant's  claim  for  compensation 
must  be  denied.  It  is  therefore  unnecessary  to  decide  the 
other  question  in  the  case,  as  to  whether  the  injury  arose  in 
the  course  of  the  employment. 


EDWARD  F.  LARDIE  vs.  GRAND  RAPIDS  SHOW  CASE  CO.      17 


EDWAED  F.  LARDIE, 

Applicant, 
vs. 

GRAND  RAPIDS  SHOW  CASE  COMPANY, 
and 

FURNITURE  MUTUAL  INSURANCE  COMPANY, 

Respondents. 

COMPENSATION  FOR  Loss  OF   USE   OF  MEMBER,  WHERE  MEMBER  is   NOT 
AMPUTATED. 

Applicant  was  injured  while  in  the  employ  of  respondent  by  his 
hand  coming  in  contact  with  a  saw  with  the  result  that  his  little 
finger  was  completely  severed,  his  third  finger  rendered  per- 
manently stiff  and  the  first  joint  of  the  index  finger  likewise 
became  permanently  stiff.  Compensation  was  paid  for  the  loss 
of  the  little  finger,  but  refused  as  to  the  injury  to  the  other 
two  fingers,  under  a  dispute  as  to  whether  applicant  was  en- 
titled to  it  under  the  act  (Sec.  10  Part  II,  Workmen's  Com- 
pensation Law). 

HELD:  1.  That  the  loss  of  the  use  of  a  member  is  sufficient  to 
entitle  the  injured  party  to  compensation  as  provided  in  the 
Act,  whether  the  member  is  completely  severed  or  not,  the 
action  of  the  surgeon  in  amputating  the  finger,  or  failing  to 
amputate  it,  not  being  controlling. 

2.  The  fact  that  a  workman,  after  suffering  the  loss  of  one 
or  more  fingers,  is  able  to  earn  the  same  wage  does  not  affect 
his  right  to  the  specific  indemnity  provided  in  Section  10,  Part 
II  of  the  Law,  cuch  indemnity  being  given  because  the  work- 
man must  go  through  the  remainder  of  his  life  without  the 
use  of  the  members  so  lost. 

Appeal  of  Edward  F.  Lardie  to  the  Industrial  Accident 
Board  to  determine  his  right  to  compensation  for  the  perman- 
ent loss  of  use  of  two  fingers.    Applicant  awarded  compensa- 
tion as  provided  by  the  statute. 
3 


18 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


Opinion  by  the  Board: 

The  applicant  while  in  the  employ  of  the  Grand  Rapids 
Show  Case  Company  met  with  an  accident  by  which  his  right 
hand  was  cut  on  a  saw,  the  little  finger  being  cut  off  and  the 
first  and  third  fingers  permanently  injured.  The  injury  to 
the  third  finger  resulted  in  its  becoming  permanently  stiff 
through  the  destruction  of  the  cord  of  control,  and  the  injury 
to  the  first  finger  also  resulted  in  permanent  stiffness  at  the 
first  joint  from  the  same  cause.  The  case  comes  before  the 
Board  on  written  stipulation  of  facts,  and  while  the  stipula- 
tion does  not  describe  the  injury  to  the  fingers  with  entire 
clearness,  it  was  conceded  on  the  argument  that  the  injury  to 
the  third  finger  rendered  it  permanently  useless,  and  that  the 
injury  to  the  first  finger  rendered  the  last  joint  of  the  same 
permanently  useless.  No  part  of  either  the  third  or  first 
finger  was  severed  from  the  hand.  Compensation  was  paid 
for  the  little  finger  was  was  severed,  and  the  matter  in  dis- 
pute here  is  whether  the  applicant  is  entitled  to  compensation 
for  the  loss  of  the  third  and  first  fingers  under  Section  10, 
Part  II  of  the  Workmen's  Compensation  Law  providing 
special  indemnity  for  the  loss  of  fingers  and  similar  members. 
The  stipulation  shows  that  the  applicant  is  now  receiving  the 
same  or  better  wages  than  at  the  time  of  the  injury. 

Under  the  stipulated  and  conceded  facts  in  the  case  the  en- 
tire third  finger  has  been  rendered  permanently  useless  by  the 
accident,  and  the  last  joint  of  the  first  finger  has  also  been 
rendered  permanently  useless.  In  other  words  the  applicant 
has  lost  entirely  the  use  of  the  third  finger  and  the  injury  to 
the  first  finger  would  be  equivalent  to  the  loss  of  one-half  of 
the  use  of  the  finger.  If  entitled  to  compensation  under  the 
specific  schedules  in  Section  10,  Part  II  of  the  Act,  applicant 
would  be  entitled  to  20  for  the  third  finger  and  17%  weeks 
for  one-half  of  the  first  finger,  the  weekly  rate  of  compensa- 
tion being  17.50. 

Is  the  loss  of  the  use  of  a  member  equivalent  to  the  loss 
of  such  member  under  the  Michigan  Compensation  Law?  The 


EDWARD  F.  LARDIE  vs.  GRAND  RAPIDS  SHOW  CASE  CO.      19 

Board  has  decided  this  question  in  the  affirmative,  using:  the 
following  language : 

"The  action  of  the  surgeon  in  amputating  a  finger,  or  in  failing  to 
amputate  it,  or  in  choosing  the  point  of  amputation,  is  not  controlling 
in  all  cases  of  this  kind.  The  real  test  in  such  cases  is  whether  the 
injured  person  has  been  permanently  deprived  of  the  use  of  the  finger. 
If  so,  then  he  has  suffered  the  loss  of  the  finger,  and  the  fact  that  the 
surgeon  failed  to  remove  it  does  not  lessen  his  loss.  If  its  usefulness 
is  entirely  destroyed,  he  has  suffered  the  loss  of  the  finger  as  com- 
pletely as  if  it  had  been  amputated." 

The  courts  have  uniformly  construed  provisions  of  accident 
policies  insuring  against  the  loss  of  a  member,  to  cover  cases 
where  the  usefulness  of  the  member  was  destroyed  by  accident 
without  resulting  in  severance  or  amputation. 

1  Am.  &  Eng.  Enc.  Law,  301. 

Fuller  vs.  Ins.  Co.  122  Mich.  548 ;  48  L.  K.  A.  86 ; 

Sneck  vs.  Trav.  Ins.  Go.  34  N.  Y.  Sup.  548. 

In  Fuller  vs.  Ins.  Co.,  supra,  our  Supreme  Court  reviews 
the  authorities  bearing  upon  this  point  in  considerable  detail, 
and  declares  unequivocally  the  doctrine  that  the  loss  of  the 
use  of  a  member  under  accident  insurance  policies  is  equival- 
ent to  the  loss  of  the  member.  After  reviewing  the  authorities 
as  above,  the  Court  says: 

"These  cases  establish  the  proposition  that  where  an  insurance 
policy  insures  against  the  loss  of  a  member,  the  word  'loss'  should 
be  construed  to  mean  the  destruction  of  the  usefulness  of  the  mem- 
ber, or  the  entire  member,  for  the  purpose  to  which,  in  its  normal 
condition,  it  was  susceptible  of  application.  In  all  these  policies  the 
word  'loss'  is  used,  and  it  is  the  loss  of  the  member  that  is  in  terms 
insured  against.  As  indicated  in  the  last  authorities  cited,  the  at- 
tempts of  insurance  companies  to  avoid  this  construction  by  so  chang- 
ing the  policy  that  it  reads,  'loss  by  severance,'  has  failed;  the  Courts 
holding,  as  before,  that  it  is  the  loss  of  the  use  of  the  member  which 
was  the  object  of  the  contract." 

In  Sneck  vs.  Trav.  Ins.  Co.  34  N.  Y.  Sup.  548,  the  same  rule 
lias  held  in  the  state  of  New  York.  There  the  Court  said 
among  other  things: 


20 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


"It  would  seem  to  be  an  extremely  narrow  and  technical  construc- 
tion of  this  contract  to  say  that  only  physical  removal  of  every 
particle  of  that  portion  of  the  human  anatomy  known  as  the  hand 
would  entitle  the  injured  to  recover  under  the  clause  of  the  policy  now 
under  consideration.  Is  it  not  more  reasonable  and  logical  to  con- 
clude that  in  the  use  of  the  language  above  referred  to  the  'entire 
hand'  as  a  part  of  the  human  structure  is  considered  in  connection 
with  the  use  to  which  it  is  adapted,  and  the  injury  which  the  loss  of 
such  use  would  entail?" 

The  decision  in  Sneck  vs.  Travelers  Ins.  Co.  above  referred 
to  was  affirmed  by  the  Court  of  Appeals  in  156,  N.  Y.  Page 
669. 

The  language  used  in  the  Workmen's  Compensation  Law 
is  "loss  of  finger,  etc.",  without  any  specification  that  such 
loss  shall  be  by  severance  or  otherwise.  The  purpose  of  the 
Compensation  Law  is  to  provide  indemnity  for  the  person  who 
suffers  such  loss  in  substantially  the  came  sense  that  such 
indemnity  is  provided  by  an  accident  insurance  contract.  We 
see  no  reason  why  the  above  construction  should  not  be  ap- 
plied to  the  language  providing  for  specific  indemnity  for  the 
loss  of  a  member  in  our  law.  The  mere  fact  that  the  injured 
employe  is  receiving  the  same  wages  after  the  injury,  does  not 
alter  the  situation.  The  specific  indemnities  provided  in  Sec- 
tion 10,  Part  II  of  the  Law  are  payable  to  the  injured  work- 
man not  because  the  injury  prevents  him  from  earning,  but 
because  he  must  go  through  the  remainder  of  his  life  without 
the  use  of  the  member  lost.  A  man  may  lose  his  forefinger 
by  accident  and  be  able  to  return  to  work  in  two  or  three 
weeks.  Nevertheless  the  Law  provides  that  he  shall  receive 
compensation  for  35  weeks,  because  throughout  the  remainder 
of  his  life  he  will  be  handicapped  by  the  loss  of  that  finger. 

We  find  that  the  applicant  is  entitled  to  37!/o  weeks  of  ad- 
ditional compensation  at  $7.50  per  week  and  judgment  will  be 
entered  accordingly. 


ELLEN  OLSON  PEDERSON  vs.  J.  W.  WELLS  LUMBER  CO.     21 


ELLEN  OLSON  PEDERSON, 

Applicant, 
vs. 
J.  W.  WELLS  LUMBER  COMPANY, 

and 

NEW  ENGLAND  CASUALTY  COMPANY, 
Respondents. 

ACCIDENTAL  DEATH — EVIDENCE. 

Applicant's  decedent  was  employed  by  the  respondent  lumber  com- 
pany at  its  saw  mill,  a  part  of  his  duties  including  the  piling  of 
lumber  on  the  docks  which  extended  from  the  mill  out  into  Green 
Bay  a  distance  of  about  700  feet.  On  the  date  of  the  accident, 
decedent  left  his  home  for  work  early  in  the  morning  as  usual, 
taking  his  dinner  in  a  lunch  box,  which  he  left  in  the  engine 
room  of  the  mill  where  it  would  be  kept  warm,  it  being  the  cus- 
tom of  the  employes  to  eat  their  dinners  during  the  noon  hour  in 
and  around  the  engine  room.  On  the  day  in  question  while  Olson 
was  piling  lumber  on  the  dock,  his  fellow  employe,  at  about  3 
minutes  to  12  o'clock,  said  "We  will  go  to  dinner"  and  started 
towards  the  mill  leaving  Olson  on  the  lumber  pile.  This  was  the 
last  seen  of  decedent  until  his  body  was  recovered  from  Green 
Bay  5  months  later.  It  was  contended  by  respondents  that  the 
proofs  fail  to  show  that  decedent  met  his  death  by  accident  aris- 
ing out  of  and  in  the  course  of  his  employment,  and  that  the 
cause  and  manner  of  his  death  rests  wholly  in  conjecture. 

HELD:  The  fact  that  decedent  did  not  come  to  the  engine  room 
for  his  dinner,  and  that  his  body  when  found  still  had  on  the 
leather  apron  in  which  he  worked,  together  with  the  other  circum- 
stances in  the  case,  justified  and  reasonably  required  the  inference 
that  decedent  met  his  death  by  drowning  while  engaged  in  per- 
forming the  duties  of  his  employment. 


Appeal  of  J.  W.  Wells  Lumber  Co.  et  al.  from  the  decision 
of  an  arbitration  committee,  awarding  compensation  to  Ellen 
Olson  Pederson  for  the  death  of  her  husband.  Affirmed, 


22  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Opinion  by  the  Board : 

On  December  4,  1913,  Martin  Olson,  the  husband  of  ap- 
plicant, was  piling  lumber  on  the  docks  of  the  respondent 
lumber  company  at  Menominee,  Michigan.  He  had  been  a 
resident  of  the  City  of  Menominee  for  fifteen  years,  was  in  the 
employ  of  the  lumber  company  about  3  years,  and  at  the  time 
of  his  death  was  receiving  $1.85  per  day.  His  family  con- 
sisted of  his  wife,  who  is  the  applicant  in  this  case,  and  one 
child  3  years  .old. 

On  the  morning  of  December  4th  lie  had  breakfast  at  his 
home  and  left  for  work  at  5  o'clock  in  the  morning,  taking  his 
dinner  with  him,  being  dressed  in  his  usual  working  clothes. 
That  morning  as  usual  he  left  his  dinner  pail  in  the  engine 
room  of  the  mill,  and  went  out  on  the  pier  or  dock  of  the  com- 
pany to  his  regular  work  of  piling  lumber.  This  lumber  dock 
extends  from  the  shore  where  the  mill  stands  about  700  feet 
into  Green  Bay.  It  consists  of  an  elevated  tramway  extend- 
ing from  the  mill  along  the  center  of  the  docks  and  18  or  20 
feet  above  the  water.  The  docks  are  on  each  side  of  the  tram- 
way and  consist  of  timbers  resting  on  spiles  driven  into  the 
bottom  of  the  Bay,  the  spaces  between  the  timbers  being  from 
5  to  6  feet  in  width.  Under  this  tramway  boards  are  laid 
down  on  the  timbers  of  the  dock  making  places  to  walk  for  the 
men  in  coining  from  and  going  to  their  work  of  piling  lumber 
or  loading  boats.  The  lumber  to  be  piled  on  the  dock  is 
brought  out  from  the  mill  along  the  tramway  in  carts  and 
unloaded  by  one  man  passing  it  down  from  the  tramway  to 
another  man  who  builds  it  up  in  a  pile  on  the  dock  timbers 
resting  on  the  spiles.  At  the  point  on  the  dock  where  Mr. 
Olson  was  last  seen  alive  the  Bay  is  about  16  feet  deep,  and 
the  timbers  of  the  dock  upon  which  the  lumber  is  piled  are 
generally  a  little  above  the  water,  but  when  the  water  is  high 
they  are  about  even  with  it. 

On  the  day  in  question  Mr.  Olson  was  working  on  the  dock 
piling  lumber  which  was  handed  down  to  him  by  one  Isaac 
Alscok,  the  pile  on  which  he  was  working  being  about  2  feet 


ELLEN  OLSON  PEDERSON  vs.  J.  W.  WELLS  LUMBER  CO.     23 

high  from  the  timbers  of  the  dock.  At  about  8  minutes  to  12 
o'clock  Alseok  said  to  Olson,  uWe  will  go  to  dinner/-  and  Ol- 
son said  "All  right."  Alseok  then  started  for  dinner,  going 
along  the  Tramway  toward  the  mill.  After  lie  left,  Olson 
could  not  do  any  more  work  as  there  was  no  one  to  hand  him 
lumber.  He  wore  a  leather  apron  and  hand-leathers  in  his 
work. 

When  Olson  did  not  appear  for  work  in  the  afternoon  in- 
quiry was  made,  the  Chief  of  Police  was  notified  and  he  took 
his  irons  and  pike  pole  and  endeavored  to  find  Olson's  body 
at  or  near  the  place  where  he  was  last  seen  as  his  work,  but 
without  success.  One  of  the  hand  leathers  which  were  used 
by  Olson  was  found  on  the  timbers  near  where  he  was  work- 
ing. On  the  4th  of  May,  1914,  Olson's  body  was  found  washed 
up  on  the  shore  about  G  miles  south  of  the  mill,  and  when 
found  he  still  had  on  the  leather  apron  which  he  was  wearing 
while  at  work  on  the  forenoon  of  the  day  he  disappeared.  The 
waters  of  Green  Bay  freeze  over  in  the  winter,  and  at  the 
break-up  in  the  spring  there  are  large  fields  of  ice  in  the  Bay 
which  are  driven  by  the  winds,  sometimes  upon  the  shore,  and 
sometimes  in  other  directions.  On  the  afternoon  of  the  day 
Olson  disappeared,  his  dinner  paid  was  found  in  the  engine 
room  of  the  mill  unopened  and  his  lunch  undisturbed.  There 
were  about  400  men  working  in  and  about  the  mill,  mill-yards 
and  docks,  but  no.  one  could  be  found  who  had  seen  Olson 
after  Alseok  left  him  on  the  lumber  dock  about  8  minutes  be- 
fore noon. 

Mr.  Olson  was  about  50  years  of  age,  was  sober  and  in- 
dustrious, owned  the  home  which  he  occupied,  and  had  $1,500 
in  the  bank.  On  the  day  of  his  disappearance  a  lumber  barge 
which  was  loading  at  the  same  dock  where  he  was  working 
went  out  that  afternoon.  Olson  was  a  large  man  weighing 
about  250  pounds.  The  Chief  of  Police  continued  to  drag  the 
water  in  the  vicinity  of  the  docks  for  li  or  4  days,  and  later 
procured  a  diver  who  spent  the  entire  day  searching  in  the 
water  for  Olson's  body.  It  is  the  claim  of  the  applicant  that 
Mr.  Olson  accidentally  fell  from  the  dock  and  was  drowned  at 


24  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

or  about  the  time  that  they  quit  work  for  dinner.  Respond- 
ents claim  that  the  proofs  fail  to  show  that  Olson  met  his 
death  by  accident  arising  out  of  and  in  the  course  of  his  em- 
ployment, and  that  the  cause  and  manner  of  his  death  rests 
wholly  in  conjecture. 

The  issue  here  presented  for  decision  is  one  of  fact  and  all 
of  the  evidence  is  circumstantial.  The  lack  of  direct  evidence, 
however,  will  not  defeat  applicant's  claim  if  the  facts  and 
circumstances  proved  justify  and  reasonably  require  the  in- 
ference that  deceased  met  his  death  by  drowning  as  he  was 
leaving  the  dock  for  dinner.  The  rule  applicable  to  this  class 
of  proof  is  stated  in  Schoepper  v.  Hancock  Chemical  Co.,  113 
Mich.,  586,  as  follows: 

"Defendant's  counsel  contend  that  the  cause  of  this  explosion  is  a 
matter  of  mere  conjecture,  and  it  is  said  by  counsel  that  it  is  not 
enough  for  plaintiff  to  prove  circumstances  consistent  with  their 
theory,  but  that  these  circumstances,  and  each  of  them,  must  pre- 
clude any  other  rational  conclusion.  .This  we  take  to  be  but  another 
way  of  stating  the  proposition  that  the  proof  must  exclude  all  reason- 
able doubt.  It  is  hardly  necessary  to  say  that  no  such  rule  obtains  in 
civil  cases.  It  is  true  that  where  an  injury  occurs  that  cannot  be 
accounted  for,  and  where  the  occasion  of  it  rests  wholly  in  conjecture, 
the  case  may  fail  for  want  of  proof.  Robinson  v.  Charles  Wright  & 
Co.,  94  Mich.,  283;  Redmond  v.  Lumber  Co.,  96  Mich.,  545.  But  such 
cases  are  rare,  and  that  rule  should  never  be  so  extended  as  to  result 
in  a  failure  of  justice,  or  in  denying  an  irijured  person  a  right  of  ac- 
tion where  there  is  room  for  balancing  the  probabilities,  and  for 
drawing  reasonable  inferences  better  supported  upon  one  side  than 
the  other." 

Mr.  Olson  had  his  breakfast  before  5  o'clock  in  the  morning, 
was  engaged  in  hard  manual  labor  piling  lumber  until  about 
noon,  when  the  men  started  for  dinner,  and  lie  would  undoubt- 
edly have  gone  directly  from  the  place  where  he  was  working 
to  the  engine  room  of  the  mill  for  his  dinner  if  accident  had 
not  prevented.  That  he  did  not  do  this  is  shown  by  the  fact 
that  his  dinner  pail  and  dinner  were  undisturbed  and  that 
none  of  the  numerous  employes  of  the  company  saw  him 
around,  the  premises  or  engine  room.  It  is  scarcely  disputed 
but  that  he  met  his  death  by  drowning,  and  the  fact  that  the 


AMBROSE  DAMPS  vs.  MICHIGAN  CENTRAL  RAILROAD  CO.   25 

body  when  found  still  had  on  the  leather  apron  in  which  he 
worked  strongly  indicates  that  the  drowning  occurred  when 
he  was  quitting  his  work  at  the  lumber  pile  on  the  dock.  These 
circumstances  outweigh  any  inference  that  might  be  drawn 
from  the  failure  of  the  Chief  of  Police  and  the  diver  to  find 
his  body  in  the  vicinity  of  the  lumber  dock.  We  think  it  is 
shown  by  a  fair  preponderance  of  the  evidence  that  Mr.  Olson 
met  his  death  by  drowning  as  he  was  leaving  or  about  to  leave 
the  lumber  dock  at  noon  for  dinner. 

The  award  of  the  committee  on  arbitration  in  favor  of  the 
applicant  is  affirmed. 


AMBROSE  DAMPS, 

Applicant, 
vs. 
MICHIGAN   CENTRAL   RAILROAD   COMPANY, 

Respondent. 

NOTICE  AND  CLAIM  FOB  INJUEY — WAIVER. 

Applicant  Damps  suffered  the  loss  of  an  eye  on  October  3,  1912,  as 
the  result  of  a  piece  of  steel  flying  into  it,  while  in  respondent's 
employ.  November  25,  1912,  applicant  filed  a  report  of  the  acci- 
dent with  the  Industrial  Accident  Board.  No  notice  of  Claim  for 
Injury  was  served  by  the  applicant  on  respondent  within  the  six 
months  after  the  accident,  but  within  that  period  such  claim  was 
filed  with  the  Board  by  applicant  and  the  Board  notified  respon- 
dent in  writing  of  the  filing  of  such  claim.  On  May  2  and  twice 
thereafter  respondent  advised  the  Board  that  it  was  carrying  on 
proceedings  looking  to  an  adjustment  of  the  claim  Applicant  re- 
fused to  sign  the  settlement  papers  because  they  were  not  satis- 
factory to  him.  Respondent  denies  liability  for  compensation  on 
the  ground  that  it  was  not  served  with  notice  of  such  claim  as 
provided  by  Sec.  15,  Part  II  of  the  Act. 


26  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

HELD:  1.  That  the  filing  of  claim  for  injury  with  the  Industrial 
Accident  Board,  and  the  action  of  the  Board  in  communicating  the 
fact  of  the  making  of  such  claim  to  respondent,  constituted  suffi- 
cient compliance  with  the  statute. 

2.  That  the  carrying  on  of  negotiations  with  applicant  for  the 
settlement  of  his  claim  as  shown  by  the  record  in  this  case  was 
a  waiver  of  the  right  to  object  that  claim  was  not  made  within 
the  statutory  period. 

Appeal  of  Michigan  Central  Railroad  Company  from  the  de- 
cision of  an  arbitration  committee  awarding  Ambrose  Damps 
compensation  for  100  weeks.  Decision  affirmed. 

Opinion  by  the  Board: 

On  October  23,  1912,  Ambrose  Damps,  while  employed  in 
the  machine  shop  of  the  Michigan  Central  Eailroad  Company 
at  Jackson,  was  injured  by  a  piece  of  steel  flying  from  a  wedge 
that  he  was  driving,  said  piece  of  steel  entering  his  right  eye. 
The  injury  resulted  in  the  loss  of  the  eye.  The  respondent 
denies  liability,  alleging  that  no  claim  for  compensation  was 
made  or  filed  with  respondent  until  more  than  six  months 
after  the  injury,  contrary  to  the  provisions  of  Section  15,  Part 
II,  of  the  Workmen's  Compensation  Law. 

On  November  25,  1912,  respondent  filed  a  report  of  this  acci- 
dent in  the  office  of  the  Industrial  Accident  Board.  On  Jan- 
uary 27th  two  copies  of  the  regular  blank  provided  by  the 
Board  for  "Notice  to  Employer  of  Claim  for  Injury''  were  sent 
by  the  Board  on  request  to  applicant's  attorney,  together  with 
a  letter  stating  that  both  of  the  blanks  should  be  filled  out, 
and  one  served  on  the  employer  and  the  other  filed  with  the 
Board.  On  February  21,  191.°,,  "Notice  to  Employer  of  Claim 
for  Injury"  made  by  said  applicant  in  this  case  on  one  of  the 
blanks  above  referred  to  was  received  and  filed  in  the  office  of 
the  Board.  It  is  claimed  that  n<>  service  of  such  claim  for  in- 
jury was  ever  made  upon  the  respondent,  and  there  is  n<> 
evidence  in  the  case  tending  to  prove  that  such  claim  was 
made  or  served  on  said  respondent.  It  is  also  established  by 
the  proofs  that  no  claim  was  made  for  compensation  on  ac- 


AMBROSE  DAMPS  vs.  MICHIGAN  CENTRAL  RAILROAD  CO.    27 

count  of  this  injury  by  the  applicant  to  said  respondent  di- 
rect within  six  months  from  the  date  of  the  injury. 

But  after  the  filing  of  claim  for  injury  in  the  office  of  the 
Board,  a  letter  was  written  by  the  Board  to  respondent  on 
February  25,  191:!.  as  follows: 

"We  beg  to  advise  that  a  claim  for  injury  has  been  filed  in  the 
above  named  case  (referring  to  the  Ambrose  Damps  case).  The  In- 
dustrial Accident  Board  is  interested  in  learning  what  disposition  has 
been  made  of  the  same.  Your  prompt  attention  will  be  appreciated." 
(Signed.) 

It  appears  further  that  respondent  advised  the  Board  by 
letter  on  May  '2.  July  9,  and  September  8,  that  it  was  carrying 
on  proceedings  looking  to  an  adjustment  of  the  claim,  and  on 
the  latter  date,  September  8,  1913,  stated  that  they  have  ''sent 
the  necessary  papers  to  Mr.  Damps  for  execution,  and  as  soon 
as  they  are  returned  we  will  send  you  the  agreement."  The 
settlement  papers  referred  to  in  the  last  letter  were  in  fact 
sent  by  respondent  to  Mr.  Damps  but  were  not  executed  be- 
cause not  satisfactory  to  the  applicant.  It  is  the  claim  of  the 
applicant  in  this  case 

(1).  That  the  claim  for  injury  filed  by  him  with  the  Industrial 
Accident  Board  on  February  21,  1913,  and  communicated  in  substance 
by  the  Board  to  respondent,  was  a  sufficient  claim  for  injury  under 
the  statute,  and 

(2).  That  the  action  of  respondent  in  the  proceedings  taken  by  it 
for  settlement  of  the  claim  constituted  a  waiver  of  formal  notice  of 
such  claim. 

After  a  careful  consideration  the  Board  has  reached  the 
conclusion  that  the  action  of  the  applicant  in  filing  his  claim 
against  respondent  for  the  injury  in  question  in  the  office  of 
the  Industrial  Accident  Board,  coupled  with  the  action  of  the 
Board  in  communicating  the  fact  of  the  making  and  filing  of 
such  claim  to  respondent,  constitutes  a  sufficient  compliance 
with  the  statute.  The  fundamental  purpose  of  the  provision 
of  law  referred  to  is  to  cause  notice  and  knowledge  of  the  fact 
that  applicant  is  asserting  such  claim  to  be  brought  home  to 
his  employer,  in  order  that  such  employer  will  be  apprized 


28  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

of  the  fact  ^that  the  applicant  is  seeking  to  establish  such 
claim.  This  it  seems  was  fairly  accomplished  by  the  filing  of 
claim  by  the  applicant  and  the  transmission  of  such  claim  in 
substance  to  the  employer  through  the  agency  of  the  Board. 
The  Board  is  also  of  the  opinion  that  the  action  of  respond- 
ent in  carrying  on  negotiations  with  the  applicant  for  a  settle- 
ment of  his  claim  for  the  injury  in  question,  through  a  period 
of  several  months  after  the  expiration  of  six  months  period, 
constitutes  a  waiver  of  the  company's  right  to  object  that 
formal  claim  for  injury  had  not  been  made  to  it  by  the  ap- 
plicant within  said  six  months. 

The  above  consideration  we  think  is  in  accord  wTith  the  prin- 
ciples adopted  by  our  Supreme  Court  in  construing  like  stat- 
utory provisions.  Kidgeway  vs."  City  of  Escanaba,  154  Mich. 
68  and  Pearll  vs.  City  of  Bay  City,  174  Mich.  647.  In  the 
Escanaba  case  the  Court  said: 

"We  have  been  inclined  to  favor  a  liberal  construction  of  statutes 
requiring  notice  of  claims,  and  have  not  denied  relief  when  by  any 
reasonable  interpretation  the  notice  could  be  said  to  be  in  substantial 
compliance  with  the  statute,  or  where  the  defect  had  been  waived 
by  the  council." 

The  decision  of  the  Committee  on-  Arbitration,  which 
awarded  the  applicant  100  weeks'  compensation,  is  affirmed. 


SAMUEL  L.  POSNER  vs.  CONTINENTAL  MOTOR  MFG.  CO.      29 


SAMUEL  L.  POSNER, 

Applicant, 
vs. 
CONTINENTAL  MOTOR  MANUFACTURING  COMPANY 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 

MUTUAL  INSURANCE  COMPANY, 

Respondents. 

NECESSARY  OPERATION — OPEN  AWARD. 

Applicant  sustained  a  rupture  by  accident  arising  out  of  and  in 
the  course  of  his  employment.  He  was  advised  by  both  his  own 
and  respondent's  physician  to  have  an  operation.  Applicant  was 
willing,  but  could  not  afford  to  pay  for  an  operation  and  respon- 
dents refused  to  provide  for  it.  In  order  to  continue  his  em- 
ployment applicant  was  obliged  to  wear  a  truss,  which  gives  him 
only  temporary  relief,  and  unless  an  operation  is  performed  he 
will  suffer  permanent  partial  disability. 

HELD :  That  the  Board  may  determine  the  question  of  respondent's 
liability  in  the  case,  and  make  an  open  award  covering  such 
disability  as  applicant  may  suffer  on  account  of  the  injury  during 
the  statutory  period  for  continuing  disability. 


Application  of  Samuel  L.  Posner  for  compensation  and  ex- 
penses incident  to  the  performance  of  a  necessary  operation. 
Granted. 

Opinion  by  the  Board: 

Samuel  Posner,  the  applicant,  while  employed  by  the  Con- 
tinental Motor  Manufacturing  Company  sustained  a  rupture 
while  lifting  an  automobile  crank  case  from  the  floor  to  a 
bench  32  inches  in  height.  At  the  time  of  lifting  he  felt  a  pain 
in  his  groin,  but  continued  to  work  during  the  remainder  of 
the  day,  though  troubled  with  the  same  pain.  When  he  went 
home  that  evening  he  complained  to  his  wife  of  being  injured 
and  following  her  advice  consulted  a  physician  who  advised 
him  that  he  needed  an  operation  for  hernia.  Posner  told  the 


30 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


doctor  that  lie  was  unable  to  afford  the  expense  of  an  opera- 
tion, and  the  doctor  told  him  in  that  event  he  should  wear  a 
truss.  He  then  reported  the  matter  to  the  time-keeper  of  the 
company  who  gave  him  an  order  to  go  to  Dr.  Witter.  He 
went  to  Doctor  Witter  and  was  again  advised  that  he  needed 
an  operation  for  the  hernia,  and  was  told  by  the  doctor  that  he 
would  take  the  matter  up  with  the  officials  of  the  company.  A 
little  later  Posner  was  sent  to  Dr.  Hutchins,  the  physician  of  the 
Michigan  Workmen's  Compensation  Mutual  Insurance  Com- 
pany. After  stating  his  case  to  Dr.  Hutchins,  he  was  told  to 
come  back  in  a  day  or  two  and  he  wo*uld  be  advised  as!  to 
what  course  the  company  would  take.  On  his  return  a  day  or 
two  later  he  was  told  that  the  company  would  do  nothing  in 
the  matter.  Posner  was  then  ready  and  willing  to  submit  to 
an  operation,  and  is  still  ready  to  do  so,  if  the  company  will 
bear  the  expense  and  pay  compensation  during  his  disability. 

While  the  testimony  in  this  case  is  conflicting,  we  think  it 
is  fairly  shown  that  the  applicant  sustained  an  injury  by 
accident,  and  that  the  accident  caused  the  hernia  from  which 
he  now  suffers.  After  the  refusal  of  the  company  to  do  any- 
thing for  him,  Posner  procured  a  truss  and  went  back  to  work 
at  the  same  employment,  and  has  earned  the  same  wages.  He 
has  lost  but  very  little  time  since  the  accident,  but  has  been 
handicapped  by  the  truss  and  his  injured  condition,  and  has 
continually  suffered  pain  and  inconvenience  in  doing  his 
work.  Unless  remedied  by  an  operation,  he  will  continue  to 
suffer,  and  disability  either  partial  or  total  will  probably  re- 
sult. The  failure  to  have  an  operation  is  due  to  the  action  of 
the  company,  as  Mr.  Posner  has  at  all  times  been  ready  and 
willing  to  undergo  the  operation,  but  was  unable  to  provide 
for  the  expense  himself,  and  the  respondents  refused  to  bear 
such  expense. 

The.  question  of  the  form  and  kind  of  relief  to  be  granted  to 
the  applicant  is  one  of  somie  difficulty.  It  seems  that  the 
respondents  liability  to  furnish  medical  and  hospital  service 
<] living  the  first  three  weeks  following  the  injury  cannot  be 
evaded  in  a  case  of  this  kind  by  refusing  to  furnish  the  same 


SAMUEL  L.  POSNER  vs.   CONTINENTAL  MOTOR  MFG.  CO.     31 

and  to  perform  the  duty  imposed  upon  them  by  the  statute. 
If  the  applicant,  on  the  respondent's  refusal  to  provide  for  an 
operation,  had  engaged  a  physician  and  hospital  service  and 
had  such  operation  performed,  the  respondents  would  be 
liable  to  pay  the  reasonable  cost  of  same.  The  fact  that  he 
was  without  me^ms  to  procure  such  operation,  though  willing 
to  undergo  the  same,  should  not  effect  his  rights  in  the  prem- 
ises, nor  should  respondents  be  permitted  to  take  advantage 
of  their  own  wrong.  However,  the  case  still  presents  the  diffi- 
culty of  making  an  award  for  a  sum  of  money  to  cover  the 
estimated  cost  of  a  prospective  operation,  and  the  loss  of  time 
following  the  same. 

In  some  of  the  Compensation  States  and  in  Great  Britain 
it  is  the  practice  in  cases  of  this  kind  to  make  what  is  termed 
an  ''open  award,"  covering  such  disability  as  the  applicant 
may  suffer  on  account  of  the  injury  during  the  entire  statut- 
ory period  in  cases  of  continuing  disability.  It  seems  to  be 
clearly  within  the  authority  of  the  Board  to  make  such  an 
award  in  connection  with  its  decision  determining  respond- 
ent's liability.  The  action  of  respondents  in  the  case  seems  to 
have  made  this  necessary  and  prevented  an  adjustment  of  the 
case  upon  a  basis  which  would  undoubtedly  remove  the  diffi- 
culty and  speedily  terminate  the  liability. 


32  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


ZENZI  SCHOENREITER, 

Applicant, 
vs. 

QUINCY  MINING  COMPANY, 
Respondent. 

SPECIFIC    INDEMNITY   FOR   Loss    OF    MEMBER — DEATH   OF    EMPLOYE   AD- 
MINISTRATOR TO  RECOVER. 

The  injury  in  this  case  resulted  in  the  loss  of  the  third  finger 
for  which  20  weeks'  compensation  was  payable.  No  part  of  it 
was  paid  prior  to  the  death  of  the  employe  which  resulted  from 
other  causes  than  the  injury. 

HELD:  1.  That  under  the  facts  in  the  case  the  employer  is 
liable  only  for  the  amount  of  compensation  which  accrued  to 
the  time  of  the  death. 

2.  The  compensation  that  had  actually  accrued  prior  to  the 
death  of  the  employe,  and  had  not  been  paid  to  him,  be- 
came a  part  of  his  estate  and  as  such  would  be  collectible  by 
his  administrator. 


Application  of  Zenzi  Schoenreiter  for  compensation  for  in- 
jury to  her  deceased  husband.  Denied  and  remanded  for 
future  proceedings. 

Opinion  by  the  Board: 

In  this  case  Hans  Schoenreiter  was  injured  while  in  the 
employ  of  the  Quincy  Mining  Company  on  October  20th  and 
died  on  December  1st.  The  injury  resulted  in  the  loss  of  the 
third  finger  for  which  he  was  entitled  to  compensation  for  a 
period  of  20  weeks  at  the  rate  of  $7.50  per  week.  It  is  con- 
ceded that  his  death  resulted  from  peritonitis  which  was  not 
caused  in  any  way  by  the  injury.  He  received  no  compensa- 
tion during  his  life  time,  but  each  week  from  the  time  of  his 
injury  until  his  death  a  check  was  drawn  in  his  favor  in  the 
company's  office,  but  not  delivered. 

The  widow  in  her  Application  for  Adjustment  of  Claim  al- 


ZENZI  SCHOENREITER  vs.  QUINCY  MINING  CO.  33 

leged  that  the  death  of  her  husband  resulted  from  the  injury, 
and  claimed  compensation  for  the  statutory  period  of  300 
weeks.  At  the  hearing  before  the  arbitration  committee  this 
claim  was  abandoned,  and  a  claim  made  on  the  part  of  the 
widow  that  she  was  entitled  to  the  20  weeks'  compensation 
that  her  husband  would  have  received  for  the  finger  had  he 
lived.  On  the  part  of  the  respondent  it  is  claimed  that  under 
Section  12  of  Part  II  of  the  Workmen's  Compensation  Law 
that  the  death  of  Mr.  Schoenreiter  terminated  the  liability  to 
make  payments  on  account  of  the  loss  of  the  finger.  It  is  also 
claimed  that  the  widow  has  no  right  to  assert  a  claim  for  the 
compensation  that  accrued  prior  to  the  death  of  deceased,  as 
that  belonged  to  him  and  passed  under  the  law  to  his  admin- 
istrator. It  is  further  claimed  that  the  company  has  a  right 
to  set  off  certain  indebtedness  owing  by  deceased  to  it  against 
this  compensation  that  had  accrued  for  the  0  weeks  and  1 
day  prior  to  the  death. 

It  seems  clear  that  the  employer  is  liable  for  the  payment  of 
the  compensation  that  accrued  prior  to  the  death  of  deceased, 
which  is  6  weeks  and  1  day  at  the  rate  of  $7.50  per  week.  This 
money  accruing  from  week  to  week  belonged  to  deceased  and 
constituted  his  property  as  much  as  if  the  money  had  been 
actually  paid  over  to  him  and  deposited  in  a  bank. 

The  question  as  to  the  liability  of  the  employer  for  the  bal- 
ance of  the  specific  period  of  20  weeks  for  the  loss  of  the 
finger  in  question  is  one  of  greater  difficulty.  The  claim  of 
counsel  for  applicant  on  this  point  is  stated  as  follows: 

"Where  there  is  an  injury  taking  off  a  finger,  the  specified  com- 
pensation is  due  at  once  and  is  deemed  to  be  for  the  period  (specified 
in  the  Act).  It  is  just  the  same  as  if  a  person  had  sued  and  re- 
covered judgment  and  that  judgment  should  be  payable  in  install- 
ments and  had  not  all  been  paid  at  the  time  of  the  death.  The  injury 
under  the  Act  given  him  a  vested  right,  and  it  is  not  necessary  that 
he  outlive  this  period  to  get  the  money." 

But  this  position  seems  to  be  in  conflict  with  Section  12, 
Part  II  of  the  Workmen's  Compensation  Law  which  is  as  fol- 
lows : 

5 


34  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"The  death  of  the  injured  employe  prior  to  the  expiration  of  the 
period  within  which  he  would  receive  such  weekly  payments  shall 
be  deemed  to  end  such  disability,  and  all  liability  for  the  remainder 
of  such  payments  which  he  would  have  received  in  case  he  had  lived 
shall  be  terminated,  but  the  employer  shall  thereupon  be  liable  for  the 
following  death  benefits  in  lieu  of  any  further  disability  indemnity:" 

In  the  opinion  of  the  Board  it  is  the  purpose  and  meaning 
of  this  provision  of  the  Law  that  the  right  to  specific  indem- 
nity in  case  of  the  loss  of  a  member  is  one  that  is  for  the  per- 
sonal benefit  of  the  injured  man,  and  that  it  is  a  right  peculiar 
to  himself  and  not  created  for  the  benefit  of  his  dependents. 
The  section  above  quoted  provides  that  in  case  of  the  death  of 
the  injured  man,  (as  a  result  of  the  injury),  that  thereupon  a 
right  to  compensation  shall  arise  in  favor  of  his  dependents 
for  the  amount  specified  in  the  statute.  We  are  of  the  opinion 
that  the  right  to  an  order  for  the  payments  of  this  special 
compensation  ceases  with  the  death  of  the  injured  man,  but 
that  the  employer  is  liable  for  the  payment  of  the  compensa- 
tion that  accrued  prior  to  the  death. 

The  compensation  which  had  accrued  prior  to  the  death  of 
deceased  was  his  property  as  much  as  if  it  had  been  actually 
paid  over  to  him.  It  was  money  owing  to  the  employe  at  the 
time  of  his  death,  and  it  seems  would  stand  upon  the  same 
basis  as  wages  that  he  had  earned  and  had  not  yet  received. 
If  we  are  correct  in  this,  then  the  proper  course  would  be  for 
for  the  administrator  of  deceased  to  make  demand  for  the 
money  owing  by  the  employer,  and  recover  the  same  if  neces- 
sary in  a  court  of  competent  jurisdiction,  where  the  question 
of  a  set-off  claim  by  the  employer  could  be  litigated.  While 
the  exemption  of  the  compensation  money  from  garnishment 
and  other  liability  to  creditors  may  be  personal  to  deceased, 
still  if  the  estate  does  not  exceed  f  150  it  perhaps  would  be 
assigned  to  the  widow  without  regard  to  the  claims  of  credit- 
ors. 

It  seems  that  under  the  circumstances  in  this  case  that  no 
award  can  be  made  to  the  applicant,  who  is  the  widow,  the 
proper  party  to  receive  the  money  being  the  administrator.  As 


MICHAEL  LA  VECK  vs.  PARKE,  DAVIS  &  COMPANY  35 

the  case  now  stands  we  can  only  determine  the  amount  for 
which  the  employer  is  liable  and  leave  the  recovery  of  same  to 
further  proceedings. 


MICfiAEL  LA  VECK, 

Applicant, 
vs. 

PARKE,  DAVIS  &  COMPANY, 
Respondent. 

PAKALYSIS — ACCIDENT  WITHIN  MEANING  OF  ACT. 

Applicant  suffered  paralysis  of  one  side  of  his  body,  caused  by  a 
cerebral  hemorrhage.  The  evidence  tended  to  show  that  such 
hemorrhage  was  the  result  of  the  rupture  of  a  small  blood  vessel 
in  the  brain.  The  testimony  tended  to  show  that  applicant  was 
working  in  a  room  where  the  temperature  was  unusually  high  and 
that  heat  coupled  with  over-exertion  was  the  cause  of  the  rupture 
in  the  brain  and  the  resulting  paralysis,  arterial  sclerosis  from 
which  the  applicant  was  suffering  being  a  contributing  cause. 

HELD:  That  the  facts  and  circumstances  shown  justified  and 
reasonably  required  the  inference  that  the  paralysis  resulted  from 
the  rupture  of  a  blood  vessel  in  the  brain,  that  the  same  was 
caused  by  over-exertion  and  heat  and  was  an  accident  arising  out 
of  the  employment  within  the  meaning  of  the  Act. 

Appeal  of  Michael  LaVeck  from  the  decision  of  an  arbitra- 
tion committee,  refusing  to  grant  him  compensation  for 
paralysis  contracted  while  in  the  employ  of  Parke,  Davis  & 
Company.  Reversed  and  compensation  granted. 

Opinion  by  the  Board : 

In  this  case  the  committee  of  arbitration  denied  applicant's 
claim  for  compensation,  and  applicant  thereupon  appealed  the 


36  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

case  to  the  full  Board  for  review.  Since  the  arbitration  a 
considerable  amount  of  additional  testimony  was  taken,  par- 
ticularly medical  testimony  tending  to  show  that  the  probable 
cause  of  the  paralysis  from  which  the  applicant  suffers  was 
a  cerebral  hemorrhage  caused  by  heat  and  over-exertion,  to- 
gether with  a  diseased  condition  of  his  arteries,  known  PS 
arterial  sclerosis  of  some  two  years  standing. 

The  evidence  fairly  tends  to  show  that  the  paralysis  re- 
sulted from  the  rupture  of  a  small  blood  vessel  in  the  brain. 
We  say  "small"  because  the  paralysis  was  gradual,  being  first 
noticed  by  the  dropping  of  a  flask  from  the  hand,  later  on  by 
inability  to  use  his  arm,  and  still  later  by  the  paralysis  of  one 
side  of  the  body.  The  work  which  applicant  was  doing  was 
making  bouillon  from  beef  by  boiling  and  certain  other 
processes  in  a  room  and  with  retorts  and  appliances  main- 
tained for  that  purpose  by  respondent.  The  weather  was  hot 
and  an  extra  amount  of  bouillon  was  made  that  week,  so  as  to 
have  enough  to  meet  the  demands  of  the  Plant  while  the  appa- 
ratus was  being  transferred  to  a  new  room  which  was  to  be 
equipped  for  such  work.  A  high  degree  of  heat  was  required 
in  the  process,  and  although  the  retorts  were  so  constructed 
as  to  protect  the  operator  as  far  as  possible  from  the  heat  and 
steam,  a  considerable  quantity  of  both  escaped  into  the  work- 
room at  the  times  of  making  the  various  changes  connected 
with  the  process.  No  visible  accident  occurred,  and  no  event 
causing  external  violence  to  applicant's  body.  It  was  appar- 
ently conceded  on  the  hearing  that  the  cause  of  the  paralysis 
was  in  the  brain,  the  applicant  contending  that  it  was  the 
rupture  of  a  cerebral  blood-vessel,  while  the  respondent  con- 
l ended  that  the  paralysis  resulted  from  the  clogging  of  such 
vessel.  The  testimony  on  behalf  of  the  applicant  tended  to 
show  that  on  account  of  the  condition  of  his  arteries  a  cere- 
bral hemorrhage  was  likely  to  result  from  the  increased  pres- 
sure caused  by  unusual  heat  and  over-exertion,  and  that  in 
the  opinion  of  his  experts  such  hemorrhage  did  occur,  result- 
ing finally. in  the  total  paralysis  of  one  side  of  the  body.  Was 


MICHAEL  LA  VECK  vs.  PARKE,  DAVIS  &  COMPANY  37 

it  an  accident  within  the  meaning  of  the  Law,  and  did  it  arise 
out  of  and  in  the  course  of  applicant's  employment? 

Under  the  doctrine  laid  down  in  the  "Spanner  Case,"  so- 
called,  and  also  in  other  and  later  English  cases,  this  would 
be  an  accident.  In  Fenton  vs.  J.  Thorley  &  Co.  5  W.  C.  C. 
4,  the  question  of  what  constitutes  an  accident  is  exhaustedly 
discussed,  Lord  MacNaghten's  opinion  being  in  subsequent 
case's  regarded  as  authority  and  this  being  regarded  as  a  lead- 
ing case.  Lord  MacNaghten's  opinion  is  an  able  discussion 
of  the  principle  involved  and  a  review  of  the  authorities.  In 
the  opinion  of  Lord  Robertson  on  Page  9  it  is  said:  "In  the 
present  instance  the  man  by  an  act  of  over-exertion  broke  the 
wall  of  his  abdomen.  Suppose  the  wheel  had  yielded  and  been 
broken  by  exactly  the  same  act,  surely  the  breakage  would  be 
rightly  described  as  accidental." 

In  Mclnnes  vs.  Dunsmuir  &  Jackson,  Ltd.,  1  B.  W.  C.  C. 
226,  it  is  held  that  where  over-exertion  brings  on  a  cerebral 
hemorrhage  and  paralysis,  it  is  an  accident  entitling  the  work- 
man to  compensation.  The  Court  say  on  Page  229: 

"It  is  the  giving  way  of  an  artery  causing  effusion  of  blood  on  the 
brain,  and  I  am  unable  to  see  any  distinction  between  this  kind  of 
physiological  injury  resulting  in  disablement,  and  the  kind  of  injury 
we  had  to  consider  in  the  case  of  Stewart." 

On  Page  230  the  Court  quotes  from  the  Thorley  case  as  fol 
lows: 

"If  a  workman  has  suffered  an  injury  by  breaking  a  limb  or  by  a 
rupture  while  he  is  trying  to  lift  a  weight  too  heavy  for  him,  then, 
according  to  the  ordinary  use  of  language,  one  would  say  that  that 
injury  was  caused  by  an  accident  which  he  met  with  while  he  was  en- 
gaged at  his  work.  I  think  the  same  rule  of  construction  applies  to 
the  question  before  us,  and  that  we  should  say  that  this  man  suffered 
from  the  bursting  of  a  blood  vessel  while  trying  to  lift  a  weight  too 
heavy  for  him.  That  it  might  not  have  been  too  heavy  for  a  man 
whose  arteries  were  in  a  sound  condition  is  nothing  to  the  purpose. 
In  the  condition  in  which  this  man's  arteries  were  he  was  undertak- 
ing a  work  which  was  too  great  for  him." 

In  Tsmay,   Imrie  &  Company  v.  Williamson  1  B.  W.  C.  C. 


38  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

232,  it  is  held  that  where  a  seaman  died  from  a  heat  stroke 
while  raking  the  fire,  that  it  was  an  accident  entitling  him  to 
compensation.  This  is  a  House  of  Lords  case  and  follows  the 
rule  laid  down  in  the  Thorley  case. 

In  Johnson  vs.  S.  S.  "Torrington"  3  B.  W.  C.  C.  70,  it  was 
held  that  where  a  fireman  working  in  the  hold  of  a  vessel  un- 
der great  heat  and  drinking  large  quantities  of  water  had  an 
apoplectic  stroke  it  was  an  accident  within  the  meaning  of 
the  Compensation  Law.  The  Court  treats  the  principle  as  es- 
tablished and  holds  that  the  determination  of  the  case  was  a 
question  of  fact. 

In  Hughes  vs.  Clover  Clayton  &  Co.  2  B.  W.  C.  C.  17,  (The 
Spanner  Case),  the  Court  say: 

"Every  man  brings  some  disability  with  him.  •  Any  exertion  or  any 
external  action  which  might  have  been  entirely  innocuous  to  a  man 
in  good  health  may  produce  most  serious  results  to  the  workman 
bringing  with  him,  as  I  have  said,  some  disability.  This  man  brought 
with  him  a  disability  of  a  serious  nature — an  aneurism —  which  I 
quite  agree  might  have  caused  his  death  at  some  time  or  other  with- 
out any  exertion  usual  or  unusual.  But  in  this  case  we  have  this 
fact  found  that  a  strain  incurred  by  the  workman  in  the  ordinary  dis- 
charge of  his  duties  caused  the  rupture  from  which  he  died.  As  I 
read  the  decisions  in  the  House  of  Lords,  it  is  not  open  to  this  Court 
to  say  that  this  is  not  an  accident.  It  is  impossible,  I  think  to  read  the 
judgment  of  Lord  Macnaghten  in  Fenton  v.  Thorley  *  *  without  seeing 
that  this  case  is  exactly  and  precisely  within  the  language  which  he 
used.  But  if  there  were  any  doubt  about  that,  the  more  recent  deci- 
sion of  the  House  of  •  Lords  of  Ismay,  Imrie  &  Co.  vs.  Williamson  is 
really  a  much  stronger  case  than  this.  In  that  case  Lord  Loreburn 
said:  'To  my  mind  the  weakness  of  the  deceased  which  predisposed 
him  to  this  form  of  attack  is  immaterial.  The  fact  that  a  man  who 
died  from  a  heat-stroke  which  was  by  physical  debility  more  likely 
than  others  so  to  suffer  can  have  nothing  to  do  with  the  question 
whether  what  befell  him  is  to  be  regarded  as  an  accident  or  not.'  *  * 
'If  a  workman  in  the  reasonable  performance  of  his  duties  sustains 
a  physiological  injury  as  a  result  of  the  work  he  is  engaged  in,  this 
is  an  accidental  injury  in  the  words  of  the  statute.'  " 

In  the  case  of  Broforst  vs.  S.  S.  "Blomfield"  VI  B.  W.  C.  C. 
613,  where  a  workman  shoveling  coal  in  the  fire  of  a  vessel 
had  an  apoplectic  stroke  which  was  found  by  the  trial  court 


MICHAEL  LAVECK  vs.  PARKE,  DAVIS  &  COMPANY  39 

to  be  due  to  the  rupture  of  an  artery  in  the  brain  which  was 
attributed  to  heat  and  exertion;  it  was  held  that  he  was  en- 
titled to  compensation  and*  that  the  question  was  one  of  fact 
which  the  appellate  court  could  not  review. 

From  a  careful  examination  of  all  of  the  facts  and  evidence 
in  the  case,  the  Board  is  of  the  opinion  that  the  strain  upon 
the  weakened  arteries  of  the  applicant  caused  by  over-exertion 
and  excessive  heat  was  more  than  they  could  stand  and  re- 
sulted in  the  rupture  of  a  blood-vessel  in  the  brain,  which  was 
followed  by  a  gradual  effusion  of  blood  resulting  in  the  grad- 
ual paralysis,  and  finally  disabling  one  side  of  the  body. 

The  award  of  the  committee  will  be  reversed  and  applicant 
granted  compensation. 


SUPREME  COURT. 

MICHAEL  LA  VECK, 

Claimant  and  Appellee, 
vs. 
PARKE,  DAVIS  &  COMPANY, 

Respondent  and  Appellant. 

ACCIDENT — CEREBRAL  HEMORRHAGE. 

Paralysis  of  one  side  of  claimant's  body  was  caused  by  hemorrhage 
resulting  from  the  rupture  of  a  small  blood  vessel  in  the  brain. 
No  visible  accident  occurred  and  no  event  causing  external  vio- 
lence to  claimant's  body.  He  was  suffering  from  arterial  sclerosis 
to  such  an  extent  that  cerebral  hemorrhage  was  likely  to  result 
from  increased  pressure  caused  by  unusual  heat  and  over-exertion. 
Just  before  the  occurrence  he  was  engaged  in  making  an  unusual 
quantity  of  bouillon  at  respondent's  plant  by  boiling  and  other  pro- 
cesses in  a  room  supplied  with  retorts  and  appliances  for  that 
purpose,  the  processes  and  weather  resulting  in  a  high  degree  of 
heat. 


40  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

HELD:  An  injury  by  accident  within  the  meaning  of  the  Workmen's 
Compensation  Law.  It  was  an  unexpected  consequence  from  the 
continued  work  in  an  excessively  warm  room. 


Gertiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  that  board  in  awarding  compensation  to  Michael  La 
Veck  for  injuries  sustained  while  in  the  employ  of  Parke, 
Davis  &  Company.  Affirmed. 

H.  R.  Martin,  of  Detroit,  for  claimant. 
Charles  M.   Woodmff,  of  Detroit,   for  defendant   and   a] 
pellant. 

MOORE,  J.  This  is  certiorari  by  the  respondent  to  the  In- 
dustrial Accident  Board  to  review  a  finding  of  the  Board 
awarding  compensation  to  the  claimant.  The  brief  of  appel- 
lant begins  as  follows : 

"Appellant  does  not  question  the  Industrial  Accident  Board's  finding 
of  facts,  and  only  refers  to  the  testimony  of  record  to  amplify  the 
same." 

It  will  be  helpful  to  quote  from  the  opinion  of  the  Indus- 
trial Accident  Board: 

"In  this  case  the  committee  of  arbitration  denied  applicant's  claim 
for  compensation,  and  applicant  thereupon  appealed  the  case  to  the 
full  board  for  review.  Since  the  arbitration  a  considerable  amount 
of  additional  testimony  was  taken,  particularly  medical  testimony 
tending  to  show  that  the  probable  cause  of  the  paralysis  from  which 
the  applicant  suffers  was  cerebral  hemorrhage  caused  by  heat  and 
over-exertion,  together  with  a  diseased  condition  of  his  arteries,  known 
as  arterial  sclerosis  of  some  two  years  standing. 

"The  evidence  fairly  tends  to  show  that  the  paralysis  resulted  from 
the  rupture  of  a  small  blood  vessel  in  the  brain.  We  say  'small' 
because  the  paralysis  was  gradual,  being  first  noticed  by  the  dropping 
of  a  flask  from  the  hand,  later  on  by  inability  to  use  his  arm,  and  still 
later,  by  the  paralysis  of  one  side  of  the  body.  The  work  which  appli- 
cant was  doing  was  making  bouillon  from  beef  by  boiling  and  certain 
other  processes  in  a  room  and  with  retorts  and  appliances  maintained 
for  that  purpose  by  respondent.  The  weather  was  hot  and  an  extra 
amount  of  bouillon  was  made  that  week,  so  as  to  have  enough  to  meet 


MICHAEL  LA  VECK  vs.  PARKE,  DAVIS  &  CO.  41 

the  demands  of  the  plant  while  the  apparatus  was  being  transferred 
to  a  new  room  which  was  to  be  equipped  for  such  work.  A  high  de- 
gree of  heat  was  required  in  the  process  and  although  the  retorts 
were  so  constructed  as  to  protect  the  operator  as  far  as  possible  from 
the  heat  and  steam,  a  considerable  quantity  of  both  escaped  into  the 
work  room  at  the  time  of  making  the  various  changes  connected  with 
the  process.  No  visible  accident  occurred  and  no  event  causing  ex- 
ternal violence  to  applicant's  body.  It  was  apparently  conceded  on 
the  hearing  that  the  cause  of  the  paralysis  was  in  the  brain,  the  ap- 
plicant contending  that  it  was  the  rupture  of  a  cerebral  blood  vessel, 
while  the  respondent  contended  that  the  paralysis  resulted  from  the 
clogging  of  such  vessel.  The  testimony  on  behalf  of  the  applicant 
tended  to  show  that  on  account  of  the  condition  of  his  arteries  a  cere- 
bral hemorrhage  was  likely  to  result  from  the  increased  pressure 
caused  by  unusual  heat  and  over-exertion,  and  that  in  the  opinion  of 
his  experts  such  hemorrhage  did  occur,  resulting  finally  in  the  total 
paralysis  of  one  side  of  the  body.  Was  it  an  accident  within  the  mean- 
ing of  the  law,  and  did  it  arise  out  of  and  in  the  course  of  applicant's 
employment? 

"Under  the  doctrine  laid  down  in  the  'Spanner  Case,'  so-called,  and 
also  in  other  and  later  English  cases,  this  would  be  an  accident.  In 
Fenton  v.  J.  Thorley  &  Co.,  5  W.  C.  C.  P.  4,  the  question  of.  what  con- 
stitutes an  accident  is  exhaustedly  discussed,  Lord  McNaughton's  opin- 
ion being  in  subsequent  cases  regarded  as  authority  and  this  being 
regarded  as  a  leading  case.  Lord  McNaughton's  opinion  is  an  able  dis- 
cussion of  the  principle  involved  and  a  review  of  the  authorities.  In 
the  opinion  of  Lord  Robertson  on  page  9,  it  is  said:  'In  the  present 
instance  a  man  by  an  act  of  over-exertion  broke  the  wall  of  his  abdo- 
men. Suppose  the  wheel  had  yielded  and  been  broken  by  exactly  the 
same  act,  surely  the  breakage  would  be  rightly  described  as  accidental. 

"In  Mclnnes  vs.  Dunsmuir-Jackson,  Ltd.  1  B.  W.  C.  C.  226,  it  is 
held  that  where  over-exertion  brings  on  a  cerebral  hemorrhage  and 
paralysis,  it  is  an  accident  entitling  the  workman  to  compensation. 
The  court  say  on  page  229: 

"It  is  the  giving  way  of  an  artery  causing  effusion  of  blood  on  the 
brain,  and  I  am  unable  to  see  any  distinction  between  this  kind  of 
physiological  injury  resulting  in  disablement,  and  the  kind  of  injury 
we  had  to  consider  in  the  case  of  Stewart. 

"On  page  231  the  court  quote  from  the  Thorley  case  as  follows: 

"If  a  workman  has  suffered  an  injury  by  breaking  a  limb  or  by  a 
rupture  while  he  is  trying  to  lift  a  weight  too  heavy  for  him,  then 
according  to  the  ordinary  use  of  language,  one  would  say  that  the  in- 
jury was  caused  by  an  accident  which  he  met  with  while  he  was  en- 
gaged in  his  work.  I  think  the  same  rule  of  construction  applies  to  the 
question  before  us,  and  that  we  should  say  that  this  man  suffered  from 


42 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


the  bursting  of  a  blood  vessel  while  trying  to  lift  a  weight  too  heavy 
for  him.  That  it  might  not  have  been  too  heavy  for  a  man  whose 
arteries  were  in  a  sound  condition  is  nothing  to  the  purpose.  In  the 
condition  in  which  this  man's  arteries  were  he  was  undertaking  a 
work  which  was  too  great  for  him. 

"In  Ismay,  Imrie  &  Company  vs.  Williamson,  1  B.  W.  C.  C.  232,  it  is 
held  that  where  a  seaman  died  from  heat  stroke  while  raking  the  fire 
that  it  was  an  accident  entitling  him  to  compensation.  This  is  a 
House  of  Lords  case  and  follows  the  rule  laid  down  in  the  Thorley 
case. 

"In  Johnson  v.  S.  S.  'Torrington,'  3  B.  W.  C.  C.  70,  it  was  held  that 
where  a  fireman  working  in  the  hold  of  a  vessel  under  great  heat  and 
drinking  large  quantities  of  water  had  an  apoplectic  stroke  it  was  an 
accident  within  the  meaning  of  the  Compensation  Law.  The  court 
treats  the  principle  as  established  and  holds  that  the  determination 
of  the  case  was  a  question  of  fact. 

"In  Hughes  v.  Clover  Clayton  &  Co.  2  B.  W.  C.  C.  17  (The  Spanner 
Case),  the  court  say: 

"Every  man  brings  some  disability  with  him.  Any  exertion  of  any 
external  action  which  might  have  been  innocuous  to  a  man  in  good 
health  may  produce  most  serious  results  to  the  workman  bringing 
with  him  as  I  have  said,  some  disability.  This  man  brought  with 
him  a  disability  of  a  serious  nature — an  aneurism — which  I  quite 
agree  might  have  caused  his  death  at  some  time  or  other  without  any 
exertion,  usual  or  unusual.  But  in  this  case  we  have  this  fact  found 
that  a  strain  incurred  by  the  workman  in  the  ordinary  discharge  of  his 
duties  caused  the  rupture  from  which  he  died.  As  I  read  the  decisions 
in  the  house  of  Lords  it  is  not  open  to  this  court  to  say  that  this  is 
not  an  accident.  It  is  impossible,  I  think,  to  read  the  judgment  of 
Lord  McNaughton  in  Fenton  v.  Thorley  without  seeing  that  this  case 
is  exactly  and  precisely  within  the  language  which  he  used.  But  if 
there  were  any  doubt  about  that  the  more  recent  decision  of  the  House 
of  Lords  in  Ismay,  Imrie  &  Co.,  vs.  Williamson  is  really  a  much 
stronger  case  than  this. 

"In  that  case  Lord  Loreburn  said: 

"To  my  mind  the  weakness  of  the  deceased  which  predisposed  him 
to  this  form  of  attack  is  immaterial.  The  fact  that  a  man  who  had 
died  from  a  heat  stroke  was  by  a  physical  debility  more  likely  than 
what  befell  him  is  to  be  regarded  as  an  accident  or  not.  If  a  work- 
others  so  to  suffer  can  have  nothing  to  do  with  the  question  whether 
man  in  the  reasonable  performance  of  his  duties  sustains  a  physiologi- 
cal injury  as  a  result  of  the  work  he  is  engaged  in,  this  is  an  acci- 
dental injury  in  the  words  of  the  statute. 

"In  the  case  of  Broforst  v.  S.  S.  Blomfield,  VI  B.  W.  C.  C.  613, 
where  a  workman  shoveling  coal  in  the  fire  of  a  vessel  had  an  apoplec- 


MICHAEL  LA  VECK  vs.  PARKE,  DAVIS  &  CO.  43 

tic  stroke  which  was  found  by  the  trial  court  to  be  due  to  the  rupture 
of  an  artery  in  the  brain  which  was  attributed  to  heat  and  exertion; 
it  was  held  that  he  was  entitled  to  compensation  and  that  the  question 
was  one  of  fact  which  the  appellate  court  could  not  review. 

"From  a  careful  examination  of  all  the  facts  and  evidence  in  the 
case,  the  Board  is  of  the  opinion  that  the  strain  upon  the  weakened 
arteries  of  the  applicant  caused  by  over-exertion  and  excessive  heat 
was  more  than  they  could  stand  and  resulted  in  the  rupture  of  a 
blood  vessel  in  the  brain  which  was  followed  by  a  gradual  effusion  of 
blood  resulting  in  the  gradual  paralysis  and  finally  disabling  one  side 
of  the  body. 

"The  award  of  the  committee  will  be  reversed  and  applicant  granted 
compensation." 

We  cannot  state  the  claim  of  appellant  better  than  to  quote 
from  the  reply  brief  as  follows : 

"As  pointed  out  in  his  brief  respondent  does  not  question  the  In- 
dustrial Accident  Board's  finding  of  facts;  but  does  affirm  that  the 
essential  facts  are  not  clearly  stated,  and  that  it  is  necessary  to  refer 
to  the  testimony  to  understand  what  the  Board  means  by  certain  words, 
phrases  and  references. 

"Before  doing  this,  however,  counsel  for  respondent  wishes  his  posi- 
tion as  to  the  law  distinctly  understood,  so  that  his  comments  upon  the 
finding  of  the  Board  may  be  read  in  the  light  thereof. 

"Counsel  for  respondent  claims  that  the  principles,  the  arguments, 
the  reasoning  upon  which  the  decision  in  Adams  vs.  Acme  White  Lead 
&  Color  Works,  182  Mich.  157  was  based  control  the  present  case  as 
effectually  as  it  did  the  case  there  decided,  notwithstanding  claimant 
in  the  case  at  bar  cannot  be  said  to  have  suffered  an  'occupational' 
disease. 


"That  the  word  'accident'  is  not  subject  to  a  special  construction,  but 
must  be  understood  in  the  light  of  common  law  definitions  and  common 
law  decisions. 


"Third.  The  accident  contemplated  by  the  Michigan  Act  must  be 
some  'casualty'  occurring  on  some  day  which  can  be  definitely  fixed, 
and  from  which  the  time  within  which  notice  of  the  injury  must  be 
given,  and  demand  for  compensation  must  be  made,  can  be  deter- 
mined. This  proposition  is  clearly  indicated  in  the  Adams  case. 

"Fourth.  It  is  therefore  submitted  that  unless  it  appears  that  some 
accident  within  the  meaning  of  the  common  law  occurred  that  was  the 
exciting  cause  of  the  gradually-developing  cerebral  hemorrhage  re- 


44 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


ferred  to  in  the  case,  the  claimant  and  appellee  is  not  entitled  to  com- 
pensation under  the  Michigan  Compensation  Act." 

Counsel  cite  other  authorities  in  support  of  his  contention, 
among  them  Feder  v.  Traveling  Men's  Association,  70  Am. 
State  B.  214. 

Counsel  also  contends  that  the  authorities  counsel  for  ap- 
pellee cite  from  New  .Jersey  and  Massachusetts  are  not  appli- 
cable because  the  statutes  of  those  states  are  different  from 
the  Michigan  Statute.  It  must  be'  conceded  there  is  some 
confusion  in  the  authorities. 

We  cannot  agree  with  counsel  that  the  case  of  Adams  v. 
White  Lead  &  Color  Works,  supra,  is  conclusive  of  the  instant 
case.  In  that  case  the  sole  question  was,  is  an  occupational 
disease  within  the  Statute.  It  was  held  that  it  was  not.  The 
case  is  more  like  the  case  of  Bayne  v.  Storage  &  Cartage  Com- 
pany, 181  Mich.  378.  In  that  case  Mr.  Bayne  undoubtedly  in- 
tended to  do  the  lifting  which  he  did  but  he  did  not  expect  the 
effect  would  be  to  hurt  his  back  with  resulting  pneumonia.  In 
the  instant  case  Mr.  La  Veck  intended  to  do  the  prolonged 
work  which  the  situation  demanded,  but  he  did  not  anticipate 
that  because  of  doing  so  his  blood  pressure  would  be  so  in- 
creased as  to  result  in  the  rupture  of  a  cerebral  blood  vessel. 
According  to  the  testimony  of  some  of  the  physicians  that 
result  could  be  traced  to  the  unusual  hours  of  work  and  the 
unusual  conditions.  It  was  an  unexpected  consequence  from 
the  continued  work  in  the  excessively  warm  room. 

Where  there  is  testimony  upon  which  the  accident  board 
can  base  its  conclusion  we  will  not  review  its  action.  Bayne 
v.  Storage  &  Cartage  Co.,  181  Mich.  R.  278;  Redfield  v.  In- 
surance Co.,  183  id.  f>33.  Other  cases  than  those  mentioned 
in  the  opinion  of  the  Industrial  Accident  Board  which  support 
its  conclusions  arc  Voorhcis  v.  Schooumaker,  80  TC.  .1.  L.  K. 
500;  Doughton  v.  Heckniau  Limited,  0  B.  W.  C.  C.  77;  Maskery 
v.  Shipping  Co.,  Limited,  0  Xeg.  &  Comp.  Cases  Ann.  7D8. 
See  also  the  cases  cited  in  note  c,  page  714  of  6  Neg.  &  Comp. 
Cases  Annotated. 

The  order  is  affirmed. 


JOSEPH  OLESKIE  vs.  DODGE  BROTHERS.  45 


JOSEPH  OLESKIE, 

Applicant, 
vs. 

DODGE  BROTHERS, 

Respondent. 

ATTORNEY'S  FEES — POWER  OF  BOARD  TO  Fix  FEES. 

A  contract  between  applicant  and  his  attorney  providing  that  such 
attorney  shall  receive  fifty  per  cent  of  the  compensation  for  ser- 
vices is  held  to  be  unreasonable  and  is  disregarded. 

Section  10,  Part  III,  Workmen's  Compensation  Act,  gives  the  Indus- 
trial Accident  Board  power  to  fix  and  determine  the  fees  of 
attorneys  and  physicians,  and  in  proper  cases  to  order  the  pay- 
ment of  same  out  of  the  amount  awarded  for  compensation. 

Petition  filed  by  attorneys  of  applicant  to  determine  their 
rights  under  a  contract  for  services,  providing  that  they  re- 
ceive fifty  per  cent  of  the  amount  of  compensation  awarded. 
Contract  held  invalid  and  the  value  of  the  services  rendered 
fixed  by  the  Board. 

Opinion  by  the  Board: 

This  is  a  proceeding  by  petition  to  determine  the  rights  of 
the  attorneys  for  applicant  under  a  contract  made  with  him 
and  for  services  rendered  pursuant  to  the  same.  The  injury 
involved  the  loss  of  applicant's  leg  and  respondents  denied 
liability.  A  contract  in  writing  was  made  under  which  the  at- 
torneys were  to  receive  fifty  per  cent  of  the  amount  recovered 
in  case  of  success,  but  nothing  in  case  of  failure.  The  con- 
tract further  gave  the  attorneys  a  lien  on  the  cause  of  action 
and  all  moneys  recovered,  and  assigned  to  them  one-half  of 
the  same  for  such  fees  and  their  necessary  disbursements.  The 
case  went  to  arbitration  and,  though  vigorously  contested  by 
respondents,  resulted  in  an  award  against  them.  They  ap- 
pealed from  the 'decision  and  the  case  was  heard  before  the 
full  Board  at  Lansing,  resulting  finally  in  the  recovery  of 


46 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


compensation  for  the  applicant  aggregating  $1,093.75.  A  part 
of  this  sum  has  already  been  paid  and  the  attorneys  claim 
they  are  entitled  to  fifty  per  cent  of  the  remainder,  or  about 
$425. 

This  was  a  case  requiring  the  services  of  attorneys.  Res- 
pondents denied  liability  and  prepared  for  a  vigorous  de- 
fense. The  case  was  well  handled  by  applicant's  attorneys, 
and  the  services  rendered  were  valuable.  If  the  question  is 
one  of  fixing  the  value  of  services  rendered,  and  we  think  it  is, 
such  value  in  the  opinion  of  the  Board  is  $150.  The  evidence 
shows  in  detail  the  various  proceedings  and  the  services  ren- 
dered, and  shows  the  case  to  be  an  unusual  one.  However, 
the  50%  provided  in  the  contract  is  an  unreasonable  amount, 
and  the  contract  in  this  respect  must  be  disregarded.  The 
Workmen's  Compensation  Law,  even  in  cases  like  this,  has 
greatly  reduced  the  amount  of  legal  work  and  minimized  the 
delay  and  expense.  What  would  not  be  an  unreasonable  per- 
centage under  the  old  system  would  be  entirely  unconscion- 
able under  the  present  law.  The  applicant  is  a  foreigner  un- 
able to  read  English  or  reasonably  understand  the  language, 
ignorant  of  the  proceedings  under  the  Workmen's  Compensa- 
tion Law,  and  while  there  was  no  fraud,  it  presents  a  proper 
case  for  the  intervention  of  the  Board  to  fix  the  amount. 

The  more  difficult  question  in  this  case  is  whether  the  Board 
has  power  to  order  the  payment  of  attorney  fees  out  of  the 
compensation  moneys.  An  examination  of  Section  10,  Part 
III  of  the  Law  discloses  that  the  language  used  relative  to 
attorney  fees  is  that,  "The  fees  and  the  payment  thereof  of 
all  attorneys  and  physicians  for  services  under  this  Act  shall 
be  subject  to  the  approval  of  the  Industrial  Accident  Board." 
The  general  meaning  of  approval  is  to  sanction,  and  it  is  fre- 
quently used  in  the  sense  of  passively  commending.  It  seems, 
however,  that  the  word  as  here  used  in  the  compensation  law 
is  in  its  active  sense  and  means  to  pass  judgment  upon.  It 
is  clear  that  the  Board  possesses  no  powers  except  those 
granted  expressly  or  by  implication  in  the  Statute.  We 
quote : 


JOSEPH  OLESKIE  vs.  DODGE  BROTHERS.  47 

"All  questions  arising  under  this  Act,  if  not  settled  by  agreement 
by  the  parties  interested  therein,  shall,  except  as  otherwise  herein 
provided,  be  determined  by  the  Industrial  Accident  Board." — Section 
16,  Part  III  of  the  Act. 

This,  together  with  the  provisions  of  Section  10,  Part  III 
and  the  general  administrative  provisions  of  the  Act,  seems  to 
be  a  grant  to  the  Board  of  full  power  to  determine  the  ques- 
tion arising  under  the  Act  as  to  the  amount  of  the  fee  and  the 
relative  rights  of  the  parties.  But  does  this  power  to  deter- 
mine questions  as  to  attorney  and  medical  fees  carry  with  it 
the  power  to  direct  the  payment  of  the  same  out  of  the  funds 
involved  in  the  proceeding?  The  question  is  an  important 
one,  as  the  Law  applies  equally  to  legal  and  medical  fees.  Both 
are  covered  by  the  same  section  and  language  of  the  Statute, 
and  if  the  position  of  the  respondents  in  this  case  is  upheld, 
an  injured  man  who  has  nothing  but  his  disputed  claim  for 
compensation  under  the  law,  would  be  rendered  powerless  to 
help  himself.  He  could  not  lawfully  assign  or  pledge  a  por- 
tion of  such  compensation  (if  finally  recovered)  for  either 
medical  or  legal  aid,  no  matter  how  badly  same  was  needed, 
and  would  therefore  be  deprived  in  many  cases  of  the  means 
of  curing  his  injuries  or  enforcing  his  rights.  This  would 
fairly  be  the  result  if  he  could  make  no  contract  for  medical 
or  legal  services  that  could  be  enforced. 

The  approval  mentioned  in  Section  10,  Part  III  of  the  Stat- 
ute is  two-fold :  viz.,  of  the  fee  and  the  payment  thereof.  It  is 
easy  to  see  how  this  provision  would  apply  in  cases  where 
the  parties  disagree  only  as  to  the  amount  and  are  willing  to 
make  payment  as  soon  as  the  Board  approves  the  amount.  The 
power  to  approve  carries  with  it  by  implication  the  power  to 
disapprove,  and  the  power  to  allow  what,  in  the  judgment  of 
the  Board  is  fair  and  just.  If,  however,  the  authority  of  the 
Board  ends  here,  and  it  mjerely  has  the  right  to  express  its 
opinion  as  to  the  amount  of  such  fees,  but  has  no  authority 
to  enforce  or  give  effect  to  such  opinion,  or  to  take  any  action 
that  would  entitle  such  opinion  even  to  respect,  then  the  pro- 
visions above  quoted  would  be  nugatory.  It  seems  clear  that 


48  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

the  provisions  of  the  above  section  were  intended  for  use  in  the 
practical  administration  of  the  Law,  and  when  read  in  con- 
nection with  the  other  administrative  features  of  the  Act  and 
its  general  plan  and  purpose,  were  intended  to  give  the  Board 
authority  to  deal  effectively  with  such  matters,  and  this  would 
imply  the  authority  to  enforce  its  determination  by  directing 
payment. 


ANDREW  BACIK, 

Applicant, 
vs. 
THE    SOLVAY   PROCESS   COMPANY, 

Respondent. 

JUDGMENT — RES  ADJUDICATA — JURISDICTION. 

Applicant  received  compensation  from  respondent  and  signed  a 
settlement  receipt  therefor.  He  returned  to  work  before  he  had 
entirely  recovered  and  later  was  forced  to  quit  again  through 
disability  caused  by  the  original  injury.  Respondent  caused  a 
judgment  for  the  amount  of  compensation  it  had  paid  to  appli- 
cant to  be  entered  against  it  in  the  Circuit  Court,  and  upon  appli- 
cant's filing  a  petition  praying  that  the  case  be  reopened  and  that 
he  be  awarded  further  compensation,  respondent  refused  payment 
on  the  ground  that  by  reason  of  the  judgment  previously  rendered 
the  entire  matter  is  res  adjudicata  and  cannot  be  reopened. 

HELD:  1.  That  the  ex-parte  action  of  respondent  in  causing  judg- 
ment to  be  rendered  against  itself  does  not  affect  the  right  of 
applicant  to  further  compensation. 

2.  The  Industrial  Accident  Board  is  expressly  given  jurisdic- 
tion to  review  and  pass  upon  questions  of  this  kind,  arising  rela- 
tive to  the  payment  of  compensation. 

Application  of  Andrew  Bacik  for  further  compensation  for 
injury  occurring  while  in  employ  of  Solvay  Process  Company. 
Granted. 


ANDREW  BACIK  vs.  THE  SOLVAY  PROCESS  CO.  49 

Opinion  by  the  Board : 

On  December  11,  1914,  applicant  filed  his  petition  in  the 
above  cause  praying  that  same  be  re-opened  and  that  he  be 
awarded  further  compensation  on  account  of  continuing  dis- 
ability. He  was  injured  on  March  26,  1914,  by  falling  from 
a  scaffold.  An  agreement  for  compensation  wras  made  and 
approved  by  the  Board  on  May  15,  1914,  and  under  this  agree- 
ment compensation  was  paid  from  time  to  time  at  the  rate 
of  |7.02  per  week  aggregating  $52.39,  the  last  payment  being 
made  and  Settlement  Receipt  signed  on  June  6,  1914.  The  ap- 
plicant wTent  back  to  work  for  a  tinie  though  still  suffering 
disability  and  still  being  treated  by  respondent's  physician. 
Lalcr  he  gave  up  the  work  and  claims  that  he  has  since  been 
unable  to  work  on  account  of  the  injury.  After  the  filing  of 
liis  petition  asking  for  further  compensation,  respondent  pro- 
cured a  certified  copy  of  the  Agreement  in  Regard  to  Compen- 
sation approved  by  the  Board,  and  filed  the  same  in  the  Cir- 
cuit Court  of  Wayne  County  and  caused  a  judgment  to  be 
rendered  against  it,  as  follows: 

"STATE  OF  MICHIGAN, 

IN  THE  CIRCUIT  COURT  FOR  THE  COUNTY  OF  WAYNE. 

At  a  session  of  said  Court  held  at  the  Court  House  on  Thursday, 
the  31st  day  of  December,  A.  D.  1914. 

Present:     Hon.  Alfred  J.  Murphy,  Circuit  Judge. 

Andrew  Bacik 

vs. 
The  Solvay  Process  Company, 

a  corporation. 

"In  this  cause,  there  having  been  presented  to  the  said  Court  by  the 
said  Solvay  Process  Company  a  duly  certified  copy  of  the  Agreement 
of  Settlement  approved  by  the  Industrial  Accident  Board  as  provided 
in  Section  13,  part  3  of  Act  No.  10  of  the  Public  Acts  of  1912  passed  at 
special  session,  and  it  appearing  from  said  certified  copy  that  the 
said  Andrew  Bacik  is  entitled  to  receive  the  sum  of  Seven  and  2/100 
dollars  ($7.02)  per  week  beginning  on  March  26th,  1914,  and  con- 
tinuing for  the  period  of  disability,  and  it  also  appearing  from  the 
certified  copy  of  the  Final  Report  of  Accident  that  said  Andrew  Bacik 
7 


50  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

returned  to  work  on   May  18th,  1914,  making  a  disability  period  of 
7  3/7  weeks, 

THEREFORE,  it  is  determined  that  said  Andrew  Bacik  do  recover 
and  have  judgment  against  said  Solvay  Process  Company  in  accordance 
with  said  Settlement  Agreement  and  Final  Report  in  the  sum  of 
$52.39  without  costs. 

(Signed)  ALFRED  J.  MURPHY, 

Circuit  Judge." 

It  will  be  seen  that  this  judgment  was  entered  on  December 
31,  1914,  several  months  after  the  payment  by  respondent  of 
the  sum  of  money  which  the  judgment  purports  to  cover,  and 
after  the  filing  of  applicant's  petition  and  before  the  same 
came  on  to  be  heard.  Respondent  claims  now  that  by  reason 
of  the  entry  of  such  judgment  in  the  Circuit  Court  of  Wayne 
County,  the  entire  matter  is  res  adjudicata  and  that  it  can- 
not be  re-opened,  and  is  not  subject  to  the  further  action  or 
jurisdiction  of  the  Board. 

We  are  of  the  opinion  that  the  substantial  rights  of  the 
applicant  are  not  affected  or  cut  off  by  the  ex  parte  action  of 
respondent  in  going  through  the  extraordinary  and  needless 
procedure  of  causing  judgment  to  be  entered  in  the  Circuit 
Court  against  itself  for  an  amount  that  it  had  already  paid  to 
the  applicant.  The  evident  purpose  of  Section  13,  Part  III  of 
the  Law,  which  provides  for  the  rendition  of  judgments  by 
the  Circuit  Courts  of  the  various  counties  based  upon  awards 
of  the  Board  or  agreements  approved  by  it,  is  to  provide  a 
means  for  the  enforcement  of  such  awards  and  agreements.  It 
certainly  was  not  intended  to  furnish  a  means  of  ousting  the 
Board  of  jurisdiction  in  a  pending  proceeding  by  having  a 
judgment  entered  in  this  way  under  the  section. 

The  objection  fails  for  the  further  reason  that  under  the 
provisions  of  Section  14,  Part  III  of  the  Law,  the  Board  is  ex- 
pressly given  jurisdiction  to  review  and  pass  upon  questions 
arising  relative  to  the  payment  of  compensation  in  cases  of 
this  kind  at  any  time  within  the  limits  prescribed  by  Law, 
and  to  terminate,  diminish  or  increase  the  compensation  if  the 
facts  warrant  such  action.  The  judgment  entered  in  the  cir- 


ANDREW  BACIK  vs.  THE  SOLVAY  PROCESS  CO.  51 

cuit  court  merely  covers  the  period  of  compensation  between 
the  injury  and  the  time  when  the  $52.39  accrued,  and  directs 
that  the  applicant  recover  that  sum.  The  Compensation  Law 
limits  the  power  of  such  court  to  the  rendition  of  a  money 
judgment  for  the  sum  fixed  either  by  the  award  or  the  ap- 
proved agreement.  Such  judgment  would  not  in  any  way  con- 
flict with  a  subsequent  claim  for  additional  compensation  in 
cases  where  the  disability  in  fact  continued  beyond  the  esti- 
mated time. 

From  a  careful  examination  of  the  proofs  the  Board  has 
reached  the  conclusion  that  the  applicant's  petition  should 
be  granted  and  that  he  is  entitled  to  further  compensation. 
From  the  evidence  now  on  file  it  is  not  clear  as  to  how  long 
applicant's  total  disability  continued,  or  whether  he  has  now 
recovered  so  as  to  be  able  to  resume  his  former  employment. 
If  the  parties  are  unable  to  agree  as  to  the  amount  of  addi- 
tional compensation,  the  Board  will  direct  the  taking  of  fur- 
ther proofs  in  the  case  on  this  particular  question,  and  will 
then  enter  an  order  fixing  the  liability. 


52  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SIDNEY  DYER, 

Applicant, 
vs. 

JAMES  BLACK  MASONRY  &  CONTRACTING  COMPANY, 

and 
EMPLOYERS'  LIABILITY  ASSURANCE 

CORPORATION,  LTD., 

Respondents. 

EMPLOYE — INDEPENDENT  CONTRACTOR — CASUAL  EMPLOYMENT. 

The  applicant  was  injured  while  assisting  in  unloading  glass.  He 
was  doing  work  for  the  principal  contractors  on  the  David  Stott 
Building  in  Detroit,  pursuant  to  a  sub-contract  which  he  held 
from  them.  He  was  doing  the  work  of  unloading  the  glass  at  the 
time  of  his  injury  pursuant  to  a  verbal  arrangement  with  such 
principal  contractors  to  assist  in  such  unloading  from  time  to 
time,  said  principal  contractors  to  pay  him  for  the  work  so  per- 
formed. Respondents  deny  liability  on  the  grounds:  (1)  That 
the  applicant  was  an  independent  contractor;  (2)  That  the  acci- 
dent did  not  arise  out  of  and  in  the  course  of  his  employment; 
And  (3)  that  if  an  employe,  then  his  employment  was  but  casual. 

HELD:  1.  That  while  the  applicant's  firm,  Dyer  and  Ross,  were 
clearly  contractors,  the  arrangement  which  the  respondents  made 
with  Sidney  Dyer  was  for  the  performance  of  work  and  service 
outside  of  the  contract  of  Dyer  and  Ross,  and  included  his  giving 
such  assistance  in  unloading  the  glass  as  he  might  deem  neces- 
sary, and  his  injury  occurring  while  engaged  in  this  work,  arose 
out  of  and  in  the  course  of  his  employment. 

2.  The  work  was  intermittent  rather  than  steady  in  its  nature, 
and  the  fact  that  it  would  extend  over  a  number  of  months  and 
would  have  continued  until  the  job  was  finished  negatives  the 
claim  that  the  employment  was  but  casual. 

Application  of  Sidney  Dyer  for  compensation  for  injury  re- 
ceived while  unloading  glass  pursuant  to  agreement  with 
James  Black  Masonry  &  Contracting  Company.  Compensa- 
tion granted. 


SIDNEY  DYER  vs.  JAMES  BLACK  MASONRY  &  CONT.  CO.     53 

Opinion  by  the  Board : 

The  applicant  was  injured  on  December  10,  1914,  while 
jjssi sting  in  unloading  glass  at  the  David  Stott  Building  in 
Detroit.  He  was  at  the  time  of  the  accident  engaged  in  do- 
ing the  glazing  on  the  building  in  question  under  the  follow- 
ing written  contract,  viz. : 

"Detroit,  Nov.  19,  1914. 
Sidney  Dyer  &  John  Ross, 

City, 
Gentlemen:  — 

We  hereby  accept  your  proposition  for  furnishing  all  labor  and 
materials  necessary  (with  the  exception  of  the  glass)  for  glazing  all 
the  glass  in  the  Davit  Stott  Building,  as  called  for  in  the  revised 
Specifications  dated  June  2nd,  1914  and  the  plans,  for  the  sum  of 
Three  Hundred  and  twelve  dollars  ($312.00),  payable  at  the  com- 
pletion of  the  work  and  the  acceptance  of  the  Architects,  Marshall 
&  Fox. 

"It  is  understood  between  us  that  the  glass  is  to  be  furnished  you 
at  the  site  of  the  said  building  and  you  are  to  take  it  from  there  and 
glaze  it. 

"It  is  also  understood  that  you  are  not  to  glaze  any  glass  which 
is  called  for  to  be  done  by  any  other  contractor  rather  than  the  glaz- 
ing contractors.  The  glazing  contractors  are  Sidney  Dyer  and  John 
Ross,  working  under  the  name  of  Dyer  &  Ross. 

"It  is  mutually  understood  that  the  Glazing  Contractors  are  to  be 
responsible  and  will  replace  all  glass  broken  by  them  in  handling  or 
setting  the  glass. 

JAMES    BLACK    MASONRY   &    CONTRACTING    CO., 

By  A.  E.  Black    (Signed) 
EABiCVR  Vice-President. 

Nov.  19,  1914. 
Accepted  by  DYER  &  ROSS 

By  SIDNEY  DYER  (Signed) 
Glaz.  Contractors." 

Tt  will  be  seen  from  this  written  agreement  that  the  prin- 
cipal contractor  was  to  furnish  the  glass  delivered  at  the  site 
of  the  building,  and  in  carrying  out  the  contract  the  glass  was 
in  fact  delivered  from  timo  to  timie  at  the  building  by  the 
Pittsburg  Plate  Glass  Company.  The  principal  contractor 
arranged  with  Mr.  Dyer  that  he  look  after  the  delivering  of 
the  glass  at  the  building  and  see  to  the  unloading,  for  which 


54  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

services  Mr.  Dyer  was  to  receive  payment  from  the  principal 
contractor.  The  injury  to  Mr.  Dyer  occurred  when  he  was 
assisting  in  the  unloading  of  glass  at  the  building  under  this 
arrangement.  The  respondents  deny  applicant's  right  to  com- 
pensation on  the  following  grounds : 

(1)  The  accident  did  not  arise  out  of  and  in  the  course 
of  the  employment. 

(2)  That  he  was  an  independent  contractor. 

(3)  That  if  an   employe,   then  his  employment  was  but 
casual. 

In  doing  the  work  of  glazing  the  building  under  the  above 
written  agreement,  the  applicant  was  clearly  a  contractor.  He 
is  so  described  in  the  writing  itself,  which  contains  all  the 
elements  of  a  contract,  and  included  the  furnishing  of  a  part 
of  the  material  by  the  applicant,  viz :  everything  "with  the  ex- 
ception of  the  glass.''  The  work  was  to  be  done  according  to 
the  architects'  specifications  and  in  such  a  manner  as  to  be  ac- 
cepted by  the  architects  of  the  building.  No  control  over  the 
work  or  the  manner  of  doing  it  is  reserved  by  the  principal 
contractor,  the  applicant  and  his  partner  being  required 
merely  to  perform  the  work  in  accordance  with  the  architects' 
specifications  and  be  responsible  for  the  result. 

The  arrangement  made  with  the  applicant  under  which  he 
was  to  look  after  the  delivery  and  unloading  of  the  glass 
fairly  includes  giving  such  reasonable  assistance  in  unload- 
ing as  he  might  deem  necessary.  It  cannot  reasonably  be  re- 
stricted to  merely  overseeing  and  directing,  but  fairly  included 
any  reasonable  assistance  in  loading  the  glass  which  was  rea- 
sonably necessary  to  accomplish  the  object  for  which  he  was 
employed.  The  injury  therefore  which  he  received  in  assisting 
in  the  unloading  arose  out  of  and  in  the  course  of  his  employ- 
ment. 

The  arrangement  under  which  applicant  was  to  look  after 
and  assist  in  the  unloading  of  the  glass  was  no  part  of  his 
contract  work.  While  it  is  doubtless  true  that  the  arrange- 


SIDNEY  DYER  vs.  JAMES  BLACK  MASONRY  &  CONT.  CO.       55 

rnent  was  made  with  him  because  he  was  doing  the  glazing  on 
the  building,  it  might  have  been  made  by  the  principal  con- 
tractor with  any  other  person  who  happened  to  be  in  the 
vicinity  and  who  could  conveniently  do  the  work  at  such  times 
as  the  loads  of  glass  arrived  at  the  building.  It  seems  clear 
that  the  applicant  was  the  employe  of  the  principal  contractor 
for  the  work  in  question,  and  that  he  is  entitled  to  compen- 
sation for  the  injury  unless  the  employment  was  casual  within 
the  meaning  of  the  Workmen's  Compensation  Law. 

It  should  be  noted  that  this  work  was  being  done  by  Sidney 
Dyer  individually,  and  not  by  the  firm  of  Dyer  &  Boss.  It  was 
billed  as  an  individual  account  with  Mr.  Dyer  and  paid  as  such. 
The  date  of  the  contract  for,  the  glazing  work  was  Novem- 
ber 19,  1914;  the  injury  occurred  on  December  10,  1914;  and 
it  appears  from  the  evidence  that  the  work  was  not  finished 
until  the  latter  part  of  March.  It  also  appears  that  the  work 
to  be  done  was  periodic  in  its  nature,  that  is,  from  time  to 
time  as  the  loads  of  glass  arrived  at  the  building.  The  build- 
ing was  a  large  one  and  the  time  during  which  this  work 
would  have  continued  had  it  not  been  for  the  accident,  would 
extend  over  a  number  of  months.  While  it  is  true  it  was  not 
steady  work,  or  work  that  consumed  a  larger  portion  of  his 
time,  yet  it  recurred  at  intervals  with  the  progress  of  the  work 
and  would  have  continued  until  the  job  was  finished.  Under 
these  facts  we  think  that  the  employment  was  not  casual. 


56  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SAXFORD  HINDMAN, 

Applicant, 
vs. 

ACME  UNIVERSAL  JOINT  MANUFACTURING 
COMPANY, 

and 

EMPLOYERS'   LIABILITY   ASSURANCE 
CORPORATION,  LTD., 
Respondents. 

CYANIDE  POISONING — OCCUPATIONAL  DISEASE  AND  NOT  AN  ACCIDENT. 
Applicant  was  employed  at  a  forge  in  the  plant  of  respondent  where 
cyanide  was  used  on  red  hot  steel,  causing  it  to  vaporize  and  be 
inhaled.  After  following  this  work  for  some  time,  he  was  taken 
violently  ill  as  a  result  of  the  inhalation  of  such  gases  and  is 
now  totally  disabled.  Respondents  filed  petition  to  be  relieved 
from  paying  further  compensation  on  the  ground  that  applicant 
was  not  suffering  from  an  accident  but  from  an  occupational 
disease. 

HELD:  That  the  disability  resulting  from  the  inhalation  of  cya- 
nide fumes  was  not  caused  by  a  sudden  occurrence,  but  by  a 
gradual  process,  and  was  an  occupational  disease  and  not  an 
accident. 

Opinion  by  the  Board: 

In  this  cause  a  petition  was  filed  by  respondents  asking 
to  be  relieved  from  making  further  payments  of  compensation 
for  several  reasons,  among  them  being  that  the  disability  of 
the  applicant  came  from  an  occupational  disease  and  not  from 
an  accident.  Applicant  was  employed  at  a  forge  in  the  plant 
of  the  .Acme  Universal  Joint  Mfg.  Company  where  cyanide 
was  used  on  the  red-hot  steel,  causing  it  to  vaporize  and-  be 
inhaled.  He  continued  at  this  work  from  June  until  Septem- 
ber, 1912,  when  he  was  taken  violently  ill  and  has  since  been 
in  a  state  of  total  disabilitv.  It  seems  clear  that  the  disabil- 


CALEDONIA  MARSHALL  vs.  CITY  OF  DETROIT.  57 

itv  was  caused  iiot  by  a  sudden  occurrence  but  by  a  gradual 
process  through  which  the  cyanide  poison  was  absorbed  into 
the  system,  making  it  an  occupational  disease  instead  of  an 
accident.  It  having  been  held  by  the  Supreme  Court  in  the 
case  of  Adams  vs.  Acme  White  Lead  &  Color  Works,  21  De- 
troit Legal  News  Page  824,  that  such  injuries  are  not  covered 
by  the  Law  in  its  present  form,  it  follows  that  the  petitioners 
are  entitled  to  be  relieved  from  making  further  payments  of 
compensation,  except  that  they  shall  make  the  payments  up 
to  the  time  of  the  filing  of  their  petition  for  relief,  August  31, 
1914. 


CALEDONIA  MARSHALL, 
Applicant, 
vs. 

CITY  OF  DETROIT, 

Respondent. 

MUNICIPAL  CORPORATIONS  SUBJECT  TO  WORKMEN'S  COMPENSATION  LAW — 
WHICH  SUPERSEDES  CHARTER  PROVISIONS. 

Applicant's  decedent  was  employed  by  the  City  of  Detroit  as  a 
garbage  wagon  driver,  and  while  engaged  in  his  duties  he  re- 
ceived injuries  which  resulted  in  his  death.  Applicant  was  re- 
fused compensation  under  the  Workmen's  Compensation  Act 
for  the  following  reasons: 

1.  Because  she  did  not  comply  with  provisions  of  the  Charter 
of  the  City  of  Detroit  in  filing  a  claim  against  the  city  in  the 
manner  provided  by  its  charter. 

2.  The  Charter  of  the  City  of  Detroit,  being  a  local  act,  is  not 
affected  by  the  provisions  of  the  Workmen's  Compensation  Law. 

3.  The  Act,  so  far  as  it  is  mandatory  upon  municipal  corpora- 
tions, is  unconstitutional. 

4.  By  accepting  a  settlement  of  five  hundred  dollars,  applicant 
should  be  barred  from  further  prosecuting  her  claim. 


58  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

HELD:  1.  That  the  provisions  of  the  Charter  of  the  City  of 
Detroit  relative  to  filing  claims  against  the  city  are  superseded 
by  the  Workmen's  Compensation  Act  which  is  especially  made 
applicable  to  every  city  within  the  State. 

2.  Sections  7  and  8,  Part  I,  Workmen's  Compensation  Law, 
expressly  make  that  law  applicable  to  every  city  in  the  state. 

3.  The  Constitution  does  not  prevent  the  Legislature  from 
imposing  upon  municipalities  the  duty  of  paying  compensation 
to  workmen  injured  while  in  their  employ,  such  duty  being  im- 
posed by  a  general  law. 

4.  Inasmuch  as  the  settlement  made  with  the  applicant  was 
made  without  reference  to  the  Workmen's  Compensation  Act, 
such  settlement  would  not  become  binding  until  approved  by  the 
Industrial  Accident  Board,  but  the  amount  will  be  treated  as 
equitably   applying   upon   the  compensation   to   which   she  was 
entitled  under  the  Act. 

Opinion  by  the  Board: 

William  Marshall,  the  husband  of  the  applicant  was  em- 
ployed by  the  city  of  Detroit  through  its  Department  of  Pub- 
lic Works,  and  on  December  17,  1912,  he  was  severely  injured 
by  the  slipping  of  a  chain  which  threw  him  from  the  garbage 
car  on  which  he  was  working.  On  March  30,  1913,  he  died.  It 
is  claimed  that  his  death  resulted  from  his  said  injury,  and 
at  the  arbitration  of  the  case  testimony  was  introduced  tend- 
ing to  support  this  claim.  At  such  hearing  an  award  was 
made  in  favor  of  the  applicant  for  compensation  at  the  rate 
of  $7.50  per  week  for  300  weeks,  less  $87.84  received  from  res- 
pondent by  Mr.  Marshall  prior  to  his  death  and  the  sum  of 
$500.00  paid  the  applicant  by  respondent  after  the  death.  An 
appeal  was  taken  from  this  award  to  the  full  Board  for  re- 
view. The  case  has  been  fully  argued  and  briefed  by  the 
parties,  the  principal  contention  on  the  part  of  the  respond- 
ent being  based  upon  the  legal  questions  raised.  Competent 
evidence  was  offered  in  support  of  the  applicant's  claim  that 
the  accident  was  the  cause  of  the  death  of  William  Marshall 
on  March  30,  1913,  and  in  the  opinion  of  the  Board  fairly  es- 
tablished such  claim. 


CALEDONIA  MARSHALL  vs.  CITY  OF  DETROIT.  59 

The  contention  is  made  by  respondent  that  applicant's 
claim  is  barred  because  she  did  not  comply  with  the  provisions 
of  the  Charter  of  the  City  of  Detroit  in  filing  a  claim  against 
the  city  under  such  Charter  provisions,  and  it  is  argued  in 
support  of  this  contention  that  the  Charter  of  the  City  of  De- 
troit, being  a  local  act,  is  not  modified  or  affected  with  refer- 
ence to  the  above  requirement  by  the  Workmen's  Compensa- 
tion Law,  which  is  a  general  act.  The  rule  of  construction 
is  well  settled  that  a  general  act  will  not  be  construed  as 
affecting  a  local  act  except  in  cases  where  it  does  so  expressly 
or  by  necessary  implication.  However,  the  provisions  of  Sec- 
tions 7  and  8  of  Part  I  of  the  Workmen's  Compensation  Law 
expressly  make  that  Law  applicable  to  every  city  within  the 
state,  which  necessarily  means  that  it  is  applicable  to  the  city 
of  Detroit.  The  language  of  the  statute  will  bear  no  other 
construction.  The  Compensation  Act  specifies  the  notices  that 
are  required  and  the  time  and  manner  of  making  claim,  and 
in  this  respect  must  be  held  to  supersede  the  provisions  of 
the  Charter  of  the  City  of  Detroit. 

It  is  contended  that  the  act  is  unconstitutional  because  it 
is  mandatory  as  to  cities  and  other  municipalities,  it  being 
elective  as  to  private  corporations  and  persons.  Whatever 
may  be  said  as  to  the  constitutional  rights  of  private  corpora- 
tions and  persons,  it  seems  clear  that  cities  stand  on  a  very 
different  basis.  Under  the  general  rule  of  law  laid  down  in 
the  books,  cities  are  mere  creatures  of  the  Legislature  possess- 
ing only  the  rights  and  powers  expressly  granted  in  their 
charters,  subject  to  modification  or  repeal  at  any  time.  While 
the  Constitution  of  1909  confers  upon  the  cities  of  Michigan 
extensive  powers  of  local  self-government,  it  does  not  affect 
the  power  of  the  Legislature  over  cities  when  exercised  through 
a  general  law  designed  to  promote  the  public  welfare.  In  the 
opinion  of  the  Board  it  was  clearly  competent  for  the  Legis- 
lature to  impose  upon  municipalities  the  duty  of  paying  com- 
pensation to  workmen  injured  in  their  service,  or  to  the  de- 
pendents of  such  workmen  in  case  of  death. 

It  is  urged  that  applicant  should  be  barred  from  prosecut- 


60 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


ing  her  claim  in  this  case  for  the  reason  that  she  has-  not  res- 
cinded the  settlement  which  she  assumed  to  make  with  res- 
pondent and  on  which  she  received  the  sum  of  $500.  It  is 
contended  that  said  applicant  having  spent  said  sum  of  money 
and  being  unable  to  return  it  to  the  city,  and  therefore  unable 
to  rescind  the  settlement,  her  claim  must  be  denied.  This 
settlement  was  made  without  reference  to  the  Compensation 
Law,  and  wras  not  reported  to  or  approved  by  the  Board.  Un- 
der Section  5  of  Part  III  of  the  act  such  settlement  would  not 
become  binding  on  the  parties  until  approved  by  the  Board, 
and  not  having  been  approved,  never  became  a  settlement  in 
law.  Therefore  no  rescission  was  necessary.  The  most  that 
can  be  required  under  the  circumstances  would  be  that  the 
amount  of  money  which  applicant  received  from  respondent  be 
treated  as  equitably  applying  upon  the  compensation  to  which 
she  was  entitled,  and  this  wras  done  by  the  award. 

The  Department  of  Public  Works  is  an  agency  of  the  City 
of  Detroit  merely,  the  city  itself  being  the  principal.  This  de- 
partment, we  think,  can  fairly  be  treated  as  an  important  and 
we  might  say  a  general  agency  of  the  city  with  reference  to 
the  matters  and  men  having  to  do  with  the  Public  Works  of 
the  City.  However,  the  question  of  notice  to  the  city  and  of 
making  claim  in  this  case  seems  to  be  placed  beyond  dispute 
by  the  action  of  the  parties  themselves.  William  Marshall 
died  on  March  30,  1913,  and  by  reason  of  his  death  the  claim 
of  the  applicant  in  this  case  came  into  being.  On  April  22, 
1013,  we  find  that  the  applicant  is  asserting  her  claim  against 
the  city  and  giving  testimony  in  support  of  it  before  the  com- 
mittee on  claims  of  the  Common  Council,  the  |500  settlement 
being  made  by  the  city  with  her  the  following  mouth.  It  ap- 
pears to  be  undisputed  that  the  city  had  knowledge  of  the  in- 
jury and  that  the  claim  was  asserted  by  applicant  within  the 
statutory  time.  Any  lack  of  formality  in  the  service  of  notice 
or  in  the  making  of  claim  must  be  deemed  to  have  been  waived 
under  the  facts  here  shown. 


HAROLD  LINSNER  vs.  CONSUMERS  ICE  AND  FUEL  CO.     61 


HAROLD  LINSXKK, 

Applicant, 
vs. 
CONSl'MKRS  ICE  AND   FFKL  COMPANY, 

and 

GENERAL  ACCIDENT  FIRE  &  LIFE 
ASSFRAXCE  CORPORATION, 
Respondents. 

COMPENSATION  FOR  DISABILITY  CAUSED  BY  HYSTERIA  AS  RESULT  OF  INJURY. 
Applicant  suffered  an  injury  to  his  foot,  for  which  he  was  paid 
compensation  from  February  12,  1914,  to  December  17,  1914,- 
Respondents  thereafter  filed  a  petition  praying  to  be  relieved 
from  paying  further  compensation  on  the  ground  that  applicant 
was  then  suffering  from  hysterical  neurosis.  The  hysterical  con- 
dition was  the  result  of  the  accident,  and  still  renders  applicant 
partially  disabled. 

HELD:  That  where  hysterical  neurosis  comes  as  a  result  of  an 
injury,  the  one  injured  is  entitled  to  compensation  during  the 
continuance  of  the  disability  arising  from  that  cause. 

Petition  by  Consumers  Ice  &  Fuel  Company  for  relief  from 
payment  of  compensation  to  Harold  Linsner  for  partial  dis- 
ability caused  by  hysterical  neurosis.  Denied. 

Opinion  by  the  Board: 

The  applicant  in  this  case  was  injured  on  February  12,  1914, 
by  having  his  foot  jammed  between  two  cakes  of  ice.  On 
April  17,  1014,  an  agreement  for  compensation  at  the  rate  of 
s7.00  per  week  was  filed  in  the  case,  and  under  this  agreement 
compensation  was  paid  until  December  17,  1014.  On  Janu- 
ary (J.  101."),  a  petition  was  filed  by  respondents  praying  that 
they  be  relieved  from  paying  further  compensation,  based 
mainly  upon  the  claim  that  applicant  was  now  suffering  from 
hysteria  or  hysterical  neurosis.  It  is  not  disputed  that  the 
applicant  is  still  partially  disabled  and  that  his  present  con- 
dition is  a  result  of  the  accident. 


62 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


The  Board  is  of  the  opinion  that  hysterical  neurosis  such 
as  the  evidence  shows  in  this  case  entitled  the  injured  man  to 
compensation  when  it  comes  as  a  result  of  the  injury.  Almost 
the  precise  question  was  passed  upon  by  the  Supreme  Court 
of  Massachusetts  in  the  case  of  Hunnewell  vs.  Casualty  Com- 
pany of  America  107  Northeastern  Reporter,  936.  We  quote 
from  the  opinion  in  that  case  as  follows : 

"The  physical  injury  to  the  eye  of  the  employe  in  the  case  at  bar 
was  slight  and  he  soon  recovered  from  it  completely  so  far  as  con- 
cerned harm  to  the  organ  itself.  But  the  committee  of  arbitration 
found  that  'the  injury  to  the  eye  caused  a  nervous  upset  and  a 
neurotic  condition  which  is  purely  functional.'  The  Board  found 
that  he  was  'partially  incapacitated  from  work  by  reason  of  a  condi- 
tion of  hysterical  blindness  and  neurosis,  said  condition  having  a 
casual  relation  with  the  personal  injury.'  These  findings  which  seem 
to  be  identical  in  substance,  were  warranted  by  the  evidence.  Ap- 
parently he  did  not  have  sufficient  will  power  to  throw  off  this  con- 
dition and  go  to  work  as  his  physical  capacity  amply  warranted  him 
in  doing.  But  such  a  condition  resulting  from  a  battery  is  an  injury 
for  which  a  tort-feasor  would  be  liable  in  damages.  Spade  v.  Lynn  & 
Boston  R.  R.,  168  Mass.  285,  47  N.  E.  88,  38  L.  R.  A.  512,  60  Am.  St. 
Rep.  393;  Id.,  172  Mass.  488,  52  N.  E.  747,  43  L.  R.  A.  832,  70  Am. 
St.  Rep.  298;  Berard  v.  Boston  &  Albany  R.  R.,  177  Mass.  179,  58 
N.  E.  586;  Homans  v.  Boston  Elev.  Ry.,  180  Mass.  456,  62  N.  E.  737, 
57  L.  R.  A.  291,  91  Am.  St.  Rep.  324;  Bell  v.  N.  Y.t  N.  H.  &  H.  R.  R., 
217  Mass.  408,  410,  104  N.  E.  963.  The  same  principles  applies  to  in- 
juries following  as  a  proximate  result  from  an  actual  physical  impact 
received  by  an  employe  under  the  act  in  the  course  of  and  arising 
out  of  his  employment." 

The  applicant  is  entitled  to  full  compensation  up  to  the  date 
of  the  filing  of  the  petition,  and  to  compensation  after  that 
date  during  the  continuance  of  his  partial  disability  at  the 
rate  of  $3.50  per  week. 


JAMES  H.  McKAY  vs.  CITY  ELECTRIC  RAILWAY  CO.  63 


JAMES  H.  McKAY, 

Applicant, 
vs. 
CITY  ELECTRIC  RAILWAY  COMPANY, 

Respondent. 

INJURY  CAUSED  BY  THIRD  PERSON — EMPLOYEE  HAS  THE  RIGHT  TO  ELECT 
BUT  CANNOT  MAKE  CLAIM  AGAINST  BOTH. 

Where  an  employe  suffers  an  injury  while  in  the  course  of  his 
employment,  which  injury  is  caused  by  some  person  or  agency 
not  connected  with  the  employment,  he  may  elect  whether  to 
sue  the  party  directly  responsible  for  his  injury  or  make  appli- 
cation to  his  employer  for  compensation. 

HELD:  That  an  employe  cannot  accept  payment  in  lieu  of 
damages  from  the  person  causing  his  injury  and  draw  com- 
pensation from  his  employer  at  the  same  time.  Any  money  so 
paid  shall  be  applied  on  the  amount  of  compensation  awarded 
him. 


Application  by  City  Electric  Company  for  reduction  in 
amount  of  compensation  paid  to  James  H.  McKay.  Granted. 

Opinion  by  the  Board: 

The  applicant  was  injured  while  in  the  employ  of  respond- 
ent, the  injury  being  caused  by  the  fall  of  a  steel  rail  which 
applicant  and  others  were  carrying  across  a  highway,  and 
which  was  struck  by  an  automobile  owned  by  one  Philip  Higer 
of  Port  Huron.  The  steel  rail  belonged  to  respondent  and  the 
work  of  carrying  it  was  a  part  of  applicant's  regular  employ- 
ment. Philip  Higer,  the  owner  of  the  automobile  in  question, 
was  away  from  home  at  the  time  and  his  automobile  was  taken 
out  of  his  garage  by  one  Biddlecomb  who  acted  on  the  re- 
quest of  Mr.  Higer's  sister-in-law  who  lived  in  the  neighbor- 
hood. On  September  18,  1914,  an  Agreement  in  Regard  to 
Compensation  was  made  by  applicant  and  respondent  under 
which  applicant  was  to  receive  compensation  at  the  rate  of 


64  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

•*7.o3  per  week  during  the  continuance  of  disability.  Six  days 
later,  on  September  24,  Mr.  Higer  while  denying  all  liability 
to  applicant,  paid  him  the  sum  of  $150  and  received  from  the 
applicant  a  full  release  for  "all  damages  present  and  future 
arising  from  a  collision  with  auto  of  said  Higer  driven  by  H. 
Biddlecomb  on  August  25th,  1914,  while  working  on  a  rail  for 
City  Electric  Railway  Company  in  the  City  of  Port  Huron." 

Some  compensation  was  paid  under  the  above  agreement 
made  by  respondent,  and  on  March  2,  1915,  respondent  filed  a 
petition  praying  to  be  relieved  from  making  further  payments 
for  the  reason  that  applicant  had  made  settlement  with  and 
received  damages  from  a  third  person,  Philip  Higer,  and  that 
said  action  barred  his  right  to  further  compensation  from  res- 
pondent. The  petition  is  based  on  Section  15,  Part  III  of  the 
Workmen's  Compensation  Act,  which  is  as  follows : 

"Sec.  15.  Where  the  injury  for  which  compensation  is  payable 
under  this  act  was  caused  under  circumstances  creating  a  legal  lia- 
bility in  some  person  other  than  the  employer  to  pay  damages  in 
respect  thereof,  the  employe  may  at  his  option  proceed  either  at  law 
against  that  person  to  recover  damages,  or  against  the  employer  for 
compensation  under  this  act,  but  not  against  both,  and  if  compensa- 
tion be  paid  under  this  act  the  employer  may  enforce  for  his  benefit  or 
for  that  of  the  insurance  company  carrying  such  risk,  or  the  commis- 
sioner of  insurance,  as  the  case  may  be,  the  liability  of  such  other 
person." 

The  provisions  of  the  above  section  are  substantially  the 
same  as  those  of  the  early  British  Workmen's  Compensation 
Acts,  and  a  review  of  the  authority  shows  that  such  provi- 
sions have  been  upheld  and  given  effect  by  the  British  Courts. 
Under  the  provisions  of  our  Act,  the  employer  who  pays  com- 
pensation to  his  injured  workman  is  clearly  entitled  to  the 
right  of  action  that  such  injured  workman  may  have  against 
a  third  party  on  account  of  the  accident.  The  settlement  and 
release  given  by  the  applicant  in  this  case  disposed  of  this 
right  of  action  which  otherwise  would  belong  to  the  employer. 
Whether  the  employer  would  prosecute  such  right  of  action  if 
the  settlement  had  not  been  made,  is  unimportant  in  this  case, 
as  the  Law  gave  him  the  right  to  do  so.  The  claim  of  the  peti- 


WILLIAM  PURDY  vs.  CITY  OF  SAULT  STE.  MARIE.  65 

tioner  in  this  case  that  the  sum  of  f  150  so  received  by  the  ap- 
plicant should  be  applied  pro  tanto  upon  the  compensation 
that  the  applicant  otherwise  would  be  entitled  to  recover, 
must  be  granted. 


WILLIAM  PURDY, 

Applicant, 
vs. 
CITY  OF   SAULT   STE.   MARIE, 

Respondent. 

MUNICIPAL    CORPORATIONS — EMPLOYES — INJURY   ARISING   IN    COURSE    OF 
EMPLOYMENT — ELECTION  TO  COME  UNDER  ACT. 

Applicant,  a  man  of  seventy-five  years  of  age,  was  employed  as  a 
street  sweeper  by  the  city  of  Sault  Ste.  Marie.  While  working 
on  the  streets  he  was  accidentally  run  down  and  injured  in  such 
a  way  that  he  was  entirely  deprived  of  the  use  of  his  left  foot. 
Compensation  was  refused  because  (1)  no  negligence  on  the 
part  of  the  municipality  or  its  officers  was  shown;  (2)  the  in- 
jury did  not  arise  out  of  claimant's  employment;  (3)  the  mu- 
nicipality was  not  served  with  notice  of  his  claim  for  damages; 
(4)  because  the  notice  provided  by  Act  10,  P.  A.  1912,  was  not 
served  upon  the  city;  (5)  because  the  city  had  not  elected  to 
come  within  the  provisions  of  the  Act. 

HELD:  1.  That  the  accident  arose  out  of  applicant's  employ- 
ment, and  that  the  liability  of  the  City  is  not  affected  by  the 
fact  of  no  negligence  on  the  part  of  itself  or  its  officers. 

2.  That  the  officers  of  the  City  had  knowledge  of  applicant's 
injury,  and  that  it  was  not  necessary  to  serve  notice  of  claim 
for   damages   in    accordance   with   the   charter   provision,   such 
provisions  being  superseded  by  the  Compensation  Law. 

3.  That  by  the  terms  of  Act  No.  10,  Public  Acts  of  1912,  all 
municipal    corporations    automatically    become    subject    to    its 
provisions,  and  no  election  is  necessary. 

9 


66  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Appeals  by  both  City  of  Sault  Ste.  Marie  (respondent)  and 
William  Purdy  (applicant)  to  the  Industrial  Accident  Board, 
from  the  decision  of  an  arbitration  committee  awarding  ap- 
plicant $5.00  per  week  for  125  weeks  for  the  loss  of  use  of  hi& 
left  foot.  Decision  of  arbitration  committee  affirmed. 

Opinion  by  the  Board: 

The  Committee  on  Arbitration  awarded  the  applicant  in 
this  case  $5  per  week  for  a  period  of  125  weeks.  The  injury 
to  the  applicant's  left  leg  was  such  as  to  deprive  him  entirely 
of  the  use  of  the  foot,  although  the  foot  was  not  amputated. 
The  arbitrator  chosen  by  the  Applicant  and  also  the  arbitrat- 
or chosen  by  the  Eespondent  filed  written  opinions  in  the 
case.  Appeals  were  taken  by  both  the  Applicant  and  the 
Respondent  to  the  full  Board  of  Review,  and  after  a  full  hear- 
ing the  award  on  arbitration  is  affirmed.  The  opinion  filed  by 
Frank  P.  Sullivan,  the  arbitrator  for  Respondent,  so  fully 
covers  and  presents  the  issues  in  the  case  that  it  is  the  sub- 
stance adopted  by  the  Board  (with  the  exception  of  the  con- 
cluding paragraph  on  the  amount  to  be  awarded),  said  opin- 
ion being  as  follows: 

"The  claimant,  William  Purdy,  was  employed  by  the  city  of 
Sault  Ste.  Marie  for  about  five  weeks  as  one  of  its  street 
sweepers,  during  the  months  of  August  and  September,  in  the 
year  1912. 

While  engaged  at  work  on  the  streets  he  was  accidentally 
run  down  and  injured  by  a  conveyance  using  the  public  streets. 

He  was  a  man  about  75  years  of  age,  and  had  been  em- 
ployed for  a  day  or  two  in  excavation  work  by  the  city  and 
was  placed  at  street  sweeping  because  he  was  not  fitted  for  the 
more  arduous  labor.  He  makes  claim  for  compensation  under 
Act  No.  10  of  the  Public  Acts  of  1912,  special  session. 

Mr.  Purdy's  left  leg,  between  the  ankle  and  the  knee,  was 
fractured  and  the  union  of  the  bones  was  such  as  to  make  the 
foot  practically  useless. 

It  is  claimed  on  behalf  of  the  city  that  the  municipality 
not  liable  because: 


WILLIAM  PURDY  vs.  CITY  OF.SAULT  STE.  MARIE.  67 

(1st)  No  negligence  on  the  part  of  the  municipality  or  any 
of  its  officers,  agents,  or  employes,  was  shown. 

(2d)  The  injury  did  not  occur  through  the  agency  of  any 
employe  or  officer  of  the  city  and  was  not  one  arising  out  of 
the  claimant's  employment. 

(3d)  Claimant  served  no  notice  upon  the  common  council 
of  said  city  or  the  proper  city  officers  of  his  claim  for  dam- 
ages, as  provided  by  the  terms  of  the  city  charter  in  such 
claims 

(4th)  Because  no  notice  of  the  injury  as  provided  by  Act 
No.  10  of  the  Public  Acts  of  1912  was  served  upon  the  respond- 
ent city  or  any  of  its  officers. 

(5th)  Because  the  city  had  not  elected  to  come  within  the 
provisions  of  Act  No.  10  and  the  provision  in  the  act  making 
it  applicable  to  cities  does  not  apply. 

Section  1  of  Act  No.  10  gives  to  every  employe  the  right  to 
recover  damages  (compensation)  for  personal  injuries  sus- 
tained in  the  course  of  his  employment,  against  his  employer. 

Subdivision  1  of  Section  5  of  the  act  provides  that  the  state, 
and  each  county,  city,  township,  incorporated  village,  and 
school  district  therein  shall  automatically  come  under  the 
act  without  any  action  on  the  part  of  the  municipality.  Every 
ether  employer  must  elect  to  come  under  the  act  before  being 
liable  to  its  provisions. 

Act  No.  50  of  the  Public  Acts  of  1913,  on  page  73,  adds  to 
Subdivision  1  of  Section  5  the  following: 

'And  each  incorporated  board  or  public  commission  in  this 
state,  authorized  by  law  to  hold  property  and  to  sue  and  be 
sued/ 

No  other  change  is  made  by  subsequent  amendments  affect- 
ing this  case. 

Section  5  of  the  act  automatically  brings  the  employer  city 
under  its  terms  unless  the  claimant  who  was  employed  by  the 
board  of  public  wTorks  of  the  city  of  Sault  Ste.  Marie,  was  an 
employe  of  an  incorporated  board  or  commission  authorized 
by  law  to  hold  property  and  to  sue  and  be  sued,  the  employes 


68 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


of  which  are  not  automatically  brought  under  the  act  until 
after  the  amendment  to  Section  1  of  said  Section  5,  made  by 
Act  No.  50  of  the  P.  A.  of  1913. 

Obviously,  the  board  of  public  works  of  said  city  is  not  such 
a  board  or  commission  as  is  contemplated  by  this  amendment. 
It  is  one  of  the  agencies  by  which  the  functions  of  the  city  are 
exercised,  and  has  none  of  the  powers  or  privileges  enumerated 
in  the  amended  statute. 

It  is  conceded  the  claimant  was  injured  while  in  the  employ 
of  the  city  by  being  run  over  or  against  by  a  vehicle  using  its 
public  streets  and  through  the  probable  carelessness  of  the 
driver.  The  injury  was  not  because  of  or  through  any  agency 
connected  with  or  incident  to  the  employment,  but  caused  by 
the  act  of  a  third  party. 

Was  it,  then,  received  in  the  course  of  his  employment,  with- 
in the  meaning  of  Section  1  of  the  act? 

This  act  is  remedial  and  should  be  construed  liberally  and 
generously,  in  favor  of  the  injured  servant.  It  is  designed  to 
afford  compensation  for  injuries  accidentally  and  even  neg- 
ligently suffered  on  the  part  of  the  employe,  where  such  neg- 
ligence was  not  intentional  or  wilful,  and  eliminates  the  doc- 
trines of  contributory  negligence,  fellow  servant,  and  safe 
place,  and  assumption  of  risk. 

The  object  of  this  law  is  to  obviate,  rather  than  to  set  in 
motion,  technical  inquiries  and  defenses,  with  which  courts 
are  familiar  and  often  very  much  puzzled.  It  is  designed 
and  should  receive  the  broadest  possible  construction  without 
doing  violence  to  the  spirit  and  language  of  the  act. 

It  is  not,  however,  intended  to  make  the  employer  an  in- 
surer of  the  safety  of  his  employes,  under  any  and  all  con- 
ditions and  from  any  cause,  whether  or  not  the  injury  results 
from  and  arises  out  of  the  employment. 

One  of  the  dangers  to  be  apprehended  in  the  usual  course 
and  conduct  of  the  work  in  question  is  just  what  did  happen, 
and  it  is  one  of  the  incidents  connected  with  the  employment. 

The  measure  is  so  salutary,  the  theory  of  the  legislation  so 
fully  in  accord  with  the  progressive  economics,  employers 


WILLIAM  PURDY  vs.  CITY  OF  SAULT  STE.  MARIE.  GO 

have  so  generally  adopted  it  and  complied  with  its  terras  with- 
out litigation  and  in  a  spirit  of  harmony  which  has  much  to 
do  with  its  successful  administration,  that  I  should  deem  it 
worthy  of  much  more  careful  research  and  inquiry  if  this  find- 
ing were  to  be  a  precedent. 

It  has  been  held  that  a  risk  is  incidental  to  the  employer 
when  it  is  an  ordinary  risk  directly  connected  with  the  em- 
ployment, or  an  extraordinary  risk  which  is  only  indirectly 
connected  with  the  employment,  owing  to  the  special  nature 
of  the  employment.  It  is  not  essential  that  there  be  any  neg- 
ligence on  the  part  of  the  city,  and  the  act  does  not  contem- 
plate making  provision  for  negligent  injuries,  but  for  accident- 
al injuries — any  accident  arising  out  of  the  employment  is  with- 
in its  terms,  and  an  accident  arises  out  of  the  employment 
when  it  is  a  risk  which  might  have  been  contemplated  by  a 
reasonable  person  when  entering  the  employment,  as  inci- 
dental to  it. 

The  work  of  the  complainant  wras  performed  upon  the  pub- 
lic streets.  He  is  somewhat  aged,  and  somewhat  deaf,  and 
necessarily  must  occupy  the  traveled  way  of  the  public  streets 
when  doing  this  work.  It  seems  to  me  that  it  needs  no  argu- 
ment to  satisfy  one  that  being  run  over  or  against  by  a  pass- 
ing vehicle  is  one  of  the  risks  incident  to  this  employment. 
The  injury  may  have  been  accidental,  but  if  it  was  accidental 
it  is  to  be  compensated  for  by  the  city. 

An  ''accident"  is  defined  as:  "An  unlocked  for  and  unto- 
ward event,  which  is  not  expected  or  designed."  There  is  no 
evidence  that  the  driver  of  this  rig  intentionally  ran  upon  and 
over  this  claimant. 

Bryant  vs.  Fessell,  2  Negligence  and  Compensation  Cases, 
P.  585. 

It  has  been  held  that  an  engineer,  while  driving  his  train 
under  a  bridge,  who  was  injured  by  a  stone  dropped  by  a  boy 
from  the  bridge,  was  an  accident  arising  out  of  and  in  the 
course  of  his  employment. 

Clmlles  vs.  London  d  Southwestern  Ry.,  2  K.  B.,  154. 

The  court  here  fixed  its  decision  on  the  fact  that  a  train  in 


70  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

motion  is  a  great  attraction  for  mischievous  boys  and  an  ob- 
ject at  which  to  hurl  missiles. 

In  Nesbitt  vs.  Rouge  and  Burns,  2  K.  B.,  689,  it  was  held 
that  the  death  of  a  cashier  who  was  robbed  and  murdered  on 
a  railway  carriage  while  carrying  money  to  pay  the  wages  of 
his  employer's  workmen,  was  caused  by  an  accident  arising 
out  of  and  in  the  course  of  his  employment,  on  the  ground 
that  the  risk  of  being  robbed  and  murdered  is  a  risk  incident 
to  the  employment  of  those  who  are  known  to  carry  consider- 
able money  in  cash  on  regular  days  over  a  regular  route,  to 
the  same  place. 

It  was  held  in  Anderson  vs.  Balfour,'2  Irish  Rep.,  297,  that 
an  injury  sustained  by  a  game  keeper  through  criminal  con- 
duct by  poachers,  was  one  arising  in  the  course  of  his  employ- 
ment. 

'Injury  to  a  salesman  and  collector  caused  by  being  kicked 
by  a  passing  horse,  while  he  was  riding  on  the  street  on  his 
bicycle,  in  the  course  of  his  business,  is  held  to  be  an  injury 
arising  from  his  employment.' 

McNeice  vs.  Singer  Sewing  Machine  Co.,  48  Scot.  Law  Rep., 
15. 

I  think  it  is  very  plain,  without  the  citation  of  further  au- 
thority, that  it  must  be  held  the  injury  was  one  sus- 
tained by  this  employe  in  the  course  of  his  employment. 

The  act,  as  I  said  before,  automatically  brings  the  respond- 
ent city  within  its  terms.  Until  a  court  of  last  resort  should 
say  that  the  attempt  of  the  Legislature  to  do  this  was  not  ef- 
fective I  should  deem  it  my  duty  to  hold  according  to  the 
literal  language  of  the  act. 

Considerable  trouble  has  been  experienced  with  reference  to 
the  notices  required,  by  both  the  charter  and  the  act  itself,  to 
be  given  by  an  injured  employe  to  his  employer.  The  charter 
of  the  respondent  city  provides  that  within  sixty  days  all 
claims  for  personal  injuries  or  otherwise  must  be  presented  to 
the  common  council  and  verified.' 

This  has  not  been  done.       The   authorities  are  numerous 


WILLIAM  PURDY  vs.  CITY  OF  SAULT  STE.  MARIE.  71 

which  sustain  the  position  that  unless  the  charter  provisions 
are  complied  with  and  the  claims  presented,  all  right  of  action 
against  the  city  is  lost,  but  none  of  them  arise  under  this 
statute. 

The  act  in  question  provides  for  notice  being  served  upon 
the  city  within  three  months  after  the  happening  of  the  in- 
jury, and  notice  of  a  claim  for  damages  under  the  act  within 
six  months  after  death  or  removal  of  physical  or  mental  inca- 
pacity. Section  18  of  the  act  provides :  "Want  of  written  no- 
tice shall  not  be  a  bar  to  proceedings  under  this  act,  if  it  be 
shown  that  the  employer  had  notice  or  knowledge  of  the  in- 
jury." 

The  testimony  discloses  that  the  city  officers  and  members 
of  the  common  council  generally  had  notice  of  the  injury?  in 
ample  time.  That  no  specific  notice  was  officially  served  upon 
them  until  after  the  expiration  of  three  months  must,  I  think, 
also  be  determined  from  the  evidence. 

However,  the  object  of  a  notice  is  to  prevent  fraud  and  to 
permit  the  city  authorities  to  collect  its  evidence  before,  the 
parties  having  knowledge  of  the  same  are  scattered  and  this 
knowledge  lost. 

I  think  that  it  has  been  sufficiently  shown  that  the  city,  in 
its  official  capacity,  and  nearly  all  of  the  city  officers  (includ- 
ing the  board  of  public  works),  had  knowledge  of  the  injury, 
and  more  or  less  desultory  consultation  and  conferences  had 
respecting  it.  I  believe  this  notice  to  be  sufficient.  The  claim 
for  injury  was  filed,  or  left  with  the  recorder,  within  six 
months  from  the  date  of  the  injury." 

The  decision  of  the  Board  m  this  case  was  affirmed  by  the 
Supreme  Court,  the  following  being  the  opinion  filed  by  said 
Court : 


72 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

WILLIAM  PURDY, 

Claimant  and  Appellee, 
vs. 

CITY  OF  SAULT  STE.  MARIE, 

Defendant  and  Appellant. 

1.  STATUTES — TITLE — WORKMEN'S  COMPENSATION  ACT — REPEAL  OF  CITY 
CHARTER  PROVISIONS. 

The  Workmen's  Compensation  Act  is  entitled  "An  act  to  promote 
the  welfare  of  the  people  of  this  state,  relating  to  the  liability 
of  employers  for  injuries  or  death  sustained  by  their  employes 
providing  compensation  for  accidental  injury  to  or  death  of  em- 
ployes and  methods  for  the  payment  of  *  *  *  same,  establishing 
an  Industrial  Accident  Board,  defining  its  powers,  providing  for  a 
review  of  its  awards,  making  an  appropriation  to  carry  out  the 
provisions  of  this  act,  and  restricting  the  right  to  compensa- 
tion or  damages  in  such  cases  to  such  as  are  provided  (for) 
by  this  act,"  and  provides,  in  part  6,  §5,  that  it  expressly  re- 
peals "all  aots  and  parts  of  acts  inconsistent  with  this  act," 
and  "replaced  by  this  act." 

HELD:  That  the  charter  provisions  of  cities  with  respect  to 
claims  which  may  be  made  under  the  Compensation  Act  are 
superseded  by  its  provisions,  the  title  of  the  act  being  broad 
enough  to  include  municipal  corporations  that  are  employers. 

2.  MASTER  AND   SERVANT — WORKMEN s    COMPENSATION   ACT — NOTICE   OF 
INJURY. 

Under  Workmen's  Compensation  Act,  pt.  2,  §18,  providing  that 
want  of  written  notice  shall  not  be  a  bar  to  proceedings  under 
the  act,  if  it  be  shown  that  the  employer  had  notice  or  knowl- 
edge of  the  injury,  where  a  street  employe  was  injured  and  in- 
formed the  superintendent  of  public  works  of  the  city,  who  had 
charge  of  work  on  the  streets,  the  latter  mentioning  the  matter 
to  the  board  of  public  works,  so  that  all  city  officials  had  notice 
of  the  injury,  the  employe  was  not  barred  from  obtaining  com- 
pensation under  the  act  by  his  failure  to  give  written  notice 
within  three  months. 


WILLIAM  PURDY  vs.  CITY  OP  SAULT  STE.  MARIE.  73 

Certiorari  to  Industrial  Accident  Board. 

Proceedings  under  the  Workmen's  Compensation  Act  by 
William  Purdy  to  obtain  compensation  for  personal  injuries, 
opposed  by  the  City  of  Sault  Ste.  Marie,  the  employer.  Com- 
pensation was  awarded  by  arbitrators  the  award  approved  by 
the  Industrial  Accident  Board,  and  the  employer  brings  cer- 
tiorari.  Affirmed. 

F.  T.  McDonald,  of  Sault  Ste.  Marie,  for  appellant, 
Lawson  C.  H olden  and  John  A.  McMahon,  both  of  Sault 
Ste.  Marie,  for  appellee. 

OSTRANDER,  J.  The  claimant,  Purdy,  was  employed  by 
the  city  of  Sault  Ste.  Marie  as  a  street  sweeper.  He  was  run 
down  and  injured  by  a  conveyance  using  the  street.  An 
award  by  arbitrators,  approved  by  the  Industrial  Accident 
Board,  is  questioned  in  this  proceeding,  the  contentions  of  the 
city  being: 

"I.  Act  No.  10,  Public  Acts  of  1912,  Extra  Session,  does  not  apply 
to  municipalities,  and  appellant  is  not  subject  to  its  provisions. 

"II.  Said  Act  No.  10  is  compulsory  as  applied  to  municipalities 
and  therefore  in  violation  of  Article  II,  Section  1,  of  the  Constitution 
of  Michigan. 

"III.  To  compel  payment  of  compensation  under  said  Act  would 
deprive  appellant  of  its  property  without  due  process  of  law. 

"IV.  Said  Act  makes  municipalities  insurers  of  its  employes  and 
compels  payment  of  compensation  whether  or  not  the  injury  is  the  re- 
sult of  any  negligence  on  the  part  of  the  municipality. 

"V.  The  legislature  is  without  constitutional  power  to  enact  such 
a  compensation  act  as  applying  to  municipalities. 

"VI.  The  award  cannot  be  sustained  because  no  claim  for  compen- 
sation or  notice  of  injury  was  presented  to  or  filed  with  the  appellant 
as  required  by  Act  No.  10,  Public  Acts  of  1912." 

In  argument  it  is  said  that  the  city  is  governed  by  a  charter 
granted  by  the  legislature  and,  pointing  out  its  provisions  re- 
lating to  the  presenting,  allowance  and  payment  of  claims 
against  it,  no  authority  is  to  be  found  for  the  payment  of  the 
award;  that  the  compensation  act,  so-called,  contains  no  pro- 
vision for  paying  the  award;  that  the  title  to  the  said  com- 


71  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

pensation  act  does  not  give  notice  of  any  intention  to  super- 
sede the  charter. 

In  Wood  v.  City  of  Detroit,  decided  herewith,  this  point  was 
not  presented,  and  is  not  referred  to  in  the  opinion.  However 
in  considering  that  case  we  had  the  advantage  of  the  briefs  in 
the  case  at  bar  and  are  of  opinion  that  the  charter  provisions 
of  cities  with  respect  to  claims  which  may  be  made  under  the 
act  here  in  question  are  superseded  by  the  provisions  of  the 
act.  Section  5  of  part  6  of  that  act  expressly  repeals  "All 
acts  and  parts  of  acts  inconsistent  with  the  act"  and  "replaced 
by  this  act."  The  title  of  the  act  mentions  and  indicates  that 
its  provisions  relate  to  "liability  of  employers  for  injuries  or 
death  sustained  by  their  employes."  It  is  general,  as  titles  of 
acts  must  be,  and  is  broad  enough  to  include  municipal  cor- 
porations if  they  are  employers.  Our  view  of  the  act,  as  ex- 
pressed in  the  opinion  in  Wood  v.  City  of  Detroit,  answers  the 
contention  that  the  plaintiff  in  certiorari  may  not  provide  the 
funds  necessary  to  pay  awards  made  under  the  act.  The  other 
points,  except  the  last,  are  answered  in  the  earlier  opinion. 

Upon  the  last  point,  we  have  reviewed  the  testimony.  The 
claimant  was  hired  by  Patrick  Brady,  who  was  superintend- 
ent of  public  works  of  the  city.  He  had  charge  of  work  on 
streets.  Mr.  Brady  saw  claimant  the  second  or  third  day 
after  the  injury  at  the  hospital  and  was  told  by  claimant  that 
while  sweeping  the  street  a  "rig"  ran  over  him.  Mr.  Brady 
mentioned  the  matter  to  the  board  of  public  works,  consisting 
of  the  mayor  and  two  members  appointed  by  the  council,  and 
in  a  general  way  the  matter  was  discussed.  An  alderman  of 
the  city  heard  of  the  injury,  called  at  claimant's  house  and 
told  claimant  he  would  take  the  matter  up  with  the  council. 
He  referred  to  the  case  in  the  council,  but  made  no  motion. 
The  first  written  notice  of  a  claim  for  compensation  was  ad- 
dressed to  Mr.  Brady  as  "City  Commissioner,"  is  dated  April 
22,  1913,  was  served  upon  Mr.  Brady  on  or  about  that  date, 
and  recites  that  the  injury  occurred  September  25,  1912.  It 
was  brought  into  the  office  of  the  city  recorder  by  some  wom- 
an May  5,  1913,  and  left  there  without  any  oral  statement.  It 


WILLIAM  PURDY  vs.  CITY  OF  SAULT  STE.  MARIE.  75 

was  laid  before  the  council  the  evening  of  that  day  and  refer- 
red to  the  city  attorney  for  a  report.  On  May  19  the  attorney 
filed  his  report.  It  is  conceded  that  he  reported  non-liability 
of  the  city.  Later,  on  December  1,  1913,  a  copy  of  a  notice  of 
application  to  the  Industrial  Accident  Board  was  served  upon 
the  city.  Objection  was  duly  made  by  the  city  before  the  ar- 
bitration committee  to  arbitrating  the  claim.  Upon  an  appeal 
from  the  award  of  the  committee  the  board,  upon  a  transcript 
of  the  testimony  and  the  objections  thereto  made  by  the  city, 
affirmed  the  award.  To  the  arbitration  committee  the  city 
objected  to  the  arbitration  "on  the  ground  that  no  notice  of 
injury  was  served  on  it,"  The  committee  disposed  of  the 
point,  as  appears  by  a  written  opinion,  in  the  following  man- 
ner: 

"The  Act  in  question  provides  for  notice  being  served  upon  the  city 
within  three  months  after  the  happening  of  the  injury,  and  notice  of 
a  claim  for  damages  under  the  Act  within  six  months  after  death  or 
the  removal  of  physical  or  mental  incapacity.  Section  18  of  the  Act 
provides:  'Want  of  written  notice  shall  not  be  a  bar  to  proceedings 
under  this  Act,  if  it  be  shown  that  the  employer  had  notice  or  knowl- 
edge of  the  injury.' 

"The  testimony  discloses  that  the  city  officers  and  members  of  the 
common  council  generally  had  notice  of  the  injury,  in  ample  time. 
That  no  specific  notice  was  officially  served  upon  them  until  after  the 
expiration  of  three  months  must,  I  think,  also  be  determined  from 
the  evidence. 

"However,  the  object  of  a  notice  is  to  prevent  fraud  and  to  permit 
the  city  authorities  to  collect  its  evidence  before  the  parties  having 
knowledge  of  the  same  are  scattered  and  this  knowledge  lost. 

"I  think  that  it  has  been  sufficiently  shown  that  the  city,  in  its 
official  capacity,  and  nearly  all  of  the  city  officers  (including  the  board 
of  public  works),  had  knowledge  of  the  injury,  and  more  or  less 
desultory  consultation  and  conferences  had  respecting  it.  I  believe 
this  notice  to  be  sufficient.  The  claim  for  injury  was  filed,  or  left 
with  the  recorder,  within  six  months  from  the  date  of  the  injury." 

Upon  the  subject  of  notice  of  injury  the  statute,  in  Part  II, 
provides : 

"Sec.  15.  No  proceedings  for  compensation  for  an  injury  under  this 
act  shall  be  maintained,  unless  a  notice  of  the  injury  shall  have  been 
given  to  the  employer  three  months  after  the  happening  thereof,  and 


76 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


unless  the  claim  for  compensation  with  respect  to  such  injury  shall 
have  been  made  within  six  months  after  the  occurrence  of  the  same; 
or,  in  case  of  the  death  of  the  employe,  or  in  the  event  of  his  physical 
or  mental  incapacity,  within  six  months  after  death  or  the  removal 
of  such  physical  or  mental  incapacity. 

"Sec.  16.  The  said  notice  shall  be  in  writing,  and  shall  state  in 
ordinary  language  the  time,  place  and  cause  of  the  injury;  and  shall 
be  signed  by  the  person  injured,  or  by  a  person  in  his  behalf,  or,  in 
the  event  of  his  death,  by  his  dependents  or  by  a  person  in  their 
behalf. 

"Sec.  17.  The  notice  shall  be  served  upon  the  employer  or  an  agent 
thereof.  Such  service  may  be  made  by  delivering  said  notice  to  the 
person  on  whom  it  is  to  be  served,  or  leaving  it  at  his  residence  or 
place  of  business,  or  by  sending  it  by  registered  mail  addressed  to 
the  person  or  corporation  on  whom  it  is  to  be  served,  at  his  last 
known  residence  or  place  of  business. 

"Sec.  18.  A  notice  given  under  the  provisions  of  this  act  shall  not 
be  held  invalid  or  insufficient  by  reason  of  any  inaccuracy  in  stating 
the  time,  place  or  cause  of  the  injury,  unless  it  is  shown  that  it  was 
the  intention  to  mislead,  and  the  employer,  or  the  insurance  company 
carrying  such  risk,  or  the  Commissioner  of  Insurance,  as  the  case 
may  be,  was  in  fact  misled  thereby.  Want  of  such  written  notice  shall 
not  be  a  bar  to  proceedings  under  this  act,  if  it  be  shown  that  the  em- 
ployer had  notice  or  knowledge  of  the  injury." 

The  notice  referred  to  in  section  16,  is,  clearly,  the  notice 
required  by  section  15  to  be  given.  The  word  "within"  must 
be  supplied  in  section  15,  making  the  section  read: 

"unless  a  written  notice  of  the  injury  shall  have  been  given  to  the 
employer  within  three  months  after  the  happening  thereof." 

No  such  notice  was  given.  It  is  apparent,  however,  that  the 
employer  had  notice  and  knowledge  of  the  injury  within  the 
shortest  period  named  in  the  act  and,  giving  effect  to  section 
18  in  accord  with  the  evident  legislative  intent,  the  claimant 
was  not  barred  this  proceeding. 

It  follows  that  there  is  no  error  and  that  the  award  must 
be  affirmed. 


MARY  WOOD  VS.  CITY  OF  DETROIT.  77 


The  i-iisse  of  MARY  WOOD  vs.  CITY  OF  DF.TKOIT.  cited  in  the 
Purdy  case,  and  which  discusses  at  length  the  objections  made 
to  the  constitutionality  of  the  law  on  account  of  it  being  man- 
datory as  to  cities  and  municipalities,  is  here  given  in  full: 


SUPREME  COURT. 

MARY  WOOD? 

Claimant  and  Appellee, 
vs. 
CITY  OF  DETROIT, 

Defendant  and  Appellant. 

CONSTITUTIONAL     LAW — WORKMEN'S    COMPENSATION     ACT — APPLICATION 
TO  MUNICIPALITIES — EQUAL  PROTECTION  OF  LAW. 

The  Workmen's  Compensation  Act  (Act  No.  10,  Public  Acts  of 
1912),  as  amended  by  Act  No.  50,  Public  Acts  of  1913,  pro- 
viding that  the  state  and  each  county,  city,  township,  incor- 
porated village,  and  school  district,  and  each  incorporated  pub- 
lic board  or  public  commission  in  the  state,  authorized  by  law 
to  hold  property  and  to  sue  or  be  sued  generally,  shall  consti- 
tute an  employer  subject  to  the  provisions  of  the  act,  is  not 
violative  of  Const,  art.  8,  §§  20-24,  providing,  generally,  that 
the  Legislature  shall  provide  by  a  general  law  for  the  incorpo- 
ration of  cities,  that  under  such  general  law  the  electors  of 
each  city  and  village  shall  have  power  to  frame  and  amend  its 
charter  and  to  pass  all  laws  and  ordinances  relating  to  mu- 
nicipal concerns,  that  any  city  or  village  may  acquire  and  main- 
tain parks,  hospitals,  etc.,  and  all  works  involving  the  public 
health  or  safety,  that  subject  to  the  Constitution  any  city  or 
village  may  acquire  and  operate  public  utilities,  etc.,  and  that 
when  a  city  or  village  is  authorized  to  acquire  or  operate  any 
such  utility  it  may  issue  bonds,  since  the  compensation  act, 
in  its  application  to  municipalities,  involves  and  touches  upon 
no  right  of  local  self-government  or  local  control  and  manage- 
ment of  corporate  property,  because  in  effect  it  declares  a  new 
public  purpose  for  which  taxes  may  be  levied  by  the  munici- 
pality, i.  e.,  to  compensate  injured  employes,  and  so  does  not 
deprive  the  municipality  of  its  property,  authorized  by  the  Con- 
stitution to  be  held  by  it. 


78  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

The  classification  of  employers  as  municipal  or  otherwise  by  the 
Legislature  in  the  Workmen's  Compensation  Act  (Act  No.  10, 
Public  Acts  of  1912)  as  amended  by  Act  No.  50,  Public  Acts  of 
1913,  giving  private  employers  an  election  whether  or  not  to 
accept  the  act,  while  imposing  it  upon  municipal  employers, 
is  not  unconstitutional,  as  denying  equal  protection  of  the  laws, 
since  the  imposition  of  the  law  upon  municipalities  works  no 
invasion  of  private  rights,  as  the  burden  assumed  by  such 
corporations  is  distributed  immediately  and  finally  upon  the 
community  subject  to  .be  taxed  to  raise  the  funds  necessary  to 
compensate  the  injured  workmen. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  the  Board  in  granting  an  award  to  Mary  Wood,  as 
compensation  for  the  death  of  her  husband,  while  in  the  em- 
ploy of  the  city  of  Detroit.  Affirmed. 

Louis  H.  Wolfe  and  Chester  L.  Schwartz,  (Maurice  E,  Fitz- 
gerald and  Samuel  W.  Shier,  of  counsel),  all  of  Detroit,  for 
claimant. 

William  E.  Tarsney,  (Richard  I.  Lawson,  of  counsel),  of  De- 
troit, for  respondent. 

Grant  Fellows,  Attorney  General;  L.  S.  Carr,  Assistant  At- 
torney General,  both  of  Lansing,  amici  curiae. 

OSTRANDER,  J.  In  March,  1914,  an  employe. of  the  Pub- 
lic Lighting  Commission  of  the  city  of  Detroit  in  the  course 
of  his  employment  was  killed.  The  Industrial  Aclident  Board 
affirmed  an  award  to  a  member  of  the  family  of  the  deceased 
made  under  the  provisions  of  ,Act  No.  10  of  the  Public  Acts 
of  the  Extra  Session  of  1912,  overruling  the  contention  of  the 
city  that,  as  applied  to  municipal  corporations,  the  act  is  void. 
The  act  is  entitled: 

"An  Act  to  promote  the  welfare  of  the  people  of  this  State,  relating 
to  the  liability  of  employers  for  injuries  or  death  sustained  by  their 
employes,  providing  compensation  for  the  accidental  injury  to  or 
death  of  employes  and  methods  for  the  payment  of  the  same,  estab- 
lishing an  industrial  accident  board,  defining  its  powers,  providing 
for  a  review  of  its  awards,  making  an  appropriation  to  carry  out  the 
provisions  of  this  act,  and  restricting  the  right  to  compensation  or 
damages  in  such  cases  to  such  as  are  provided  by  this  act." 


MARY  WOOD  VS.  CITY  OF  DETROIT.  79 

The  proposition  of  plaintiff  in  certiorari  are  that  the  effect 
of  the  act,  in  operation,  is  to  deprive  it  of  its  property  with- 
out due  process  of  law,  the  Legislature  being  without  power 
to  compel  it  to  respond  in  damages  to  an  employe  injured 
without  its  fault;  that  by  the  terms  and  operation  of  the  law 
and  in  respect  to  its  private  and  proprietary  functions  and 
powers  its  rights  and  the  similar  rights  of  individuals  and  of 
private  corporations  are  not  equally  protected.  It  is  also  con- 
tended that  in  the  Home  Kule  Act  the  Legislature  exhausted 
its  powers  and  may  not  by  the  act  in  question  affect  municipal 
affairs  as  it  has  assumed  to  do. 

On  the  other  hand,  the  claimant,  the  defendant  in  certio- 
rari, presents  points  which  are  stated  in  the  brief  as  follows: 

"(1)  That  Act  No.  10,  Public  Acts  1912,  Extra  Session,  is  consti- 
tutional and  is  within  the  police  power  of  the  State;  and  that  the 
State  has  absolute  control  of  municipalities. 

"(2)  That  the  Legislature  in  passing  Act  No.  279  in  1909,  known 
as  the  Home  Rule  Bill,  did  not  relinquish  its  control  or  its  further 
guidance  or  restrictive  powers  as  to  municipalities;  that  the  provi- 
sion in  the  constitution  made  in  1908  in  which  it  is  stated  that  the 
legislature  shall  provide  a  general  law  for  the  incorporation  of  cities 
and  villages  with  reference  to  the  rate  of  taxation  for  municipal  pur- 
poses and  restricting  their  powers  to  borrow  money  and  contracting 
debts  did  not  prevent  the  legislature  from  passing  a  law  such  as  Act 
No.  10  of  the  Public  Acts  of  1912,  Extra  Session. 

"(3)  The  appellee  contends  that  municipalities,  such  as  cities,  vil- 
lages, towns,  townships,  and  counties  are  not  discriminated  against 
in  Act  No.  10  of  the  Public  Acts  of  1912,  Extra  Session;  that  the 
Legislature  did  not  exceed  its  authority  in  passing  a  measure  which 
compels  an  employer  (Municipality)  to  pay  money  to  an  employe  who 
is  injured  while  within  the  scope  of  his  employment,  whether  or  not 
the  employer  (Municipality)  is  negligent  in  any  degree." 

A  Workmen's  Compensation  Act  has  been  held  to  be  in- 
valid, because  compulsory,  in  Ives  v.  South  Buffalo  Ry  Co., 
201  N.  Y.  271,  and  valid,  though  compulsory,  in  State  ex  rel 
Davis-Smith  Co.  v.  Clausen,  Wash.  117  Pac.  Rep.  1101.  The 
New  York  decision  was  made  in  March,  1911.  In  November, 
1913,  the  constitution  of  New  York  was  amended  (Art.  1,  Sec. 
19),  and  it  has  since  been  held,  Jensen  v.  Southern  Pac.  Co., 


80  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

109  N.  E.  Rep.  600,  that  the  constitutional  amendment  meets 
the  objections  suggested  by  the  court  and  sustains  the  present 
act,  which  differs  essentially  from  the  one  considered  in  the 
Ives  case.  See,  also,  State  ex  rel.  Yaple  v.  Creamer,  85  Ohio 
St.  349,  and  Porter  v.  Hopkins,  109  N.  E.  Rep.  629.  The  broad 
question  discussed  in  the  cases  referred  to  is  not  before  us. 
The  questions  here  are  whether  the  Legislature  may  impose 
the  obligation  upon  a  municipal  corporation  and,  if  it  mayr 
then  whether  the  act  discriminates,  unlawfully,  between  such 
corporations  and  others  affected  by  the  act. 

It  is  well  to  inquire  what  will  be  the  effect  of  the  law  in 
application-  to  actual  affairs,  and  especially  in  what  way,  if 
in  any,  it  affects  differently,  municipal  corporations  and  pri- 
vate corporations  and  individuals. 

Excepting  employers  of  domestic  and  farm  labor,  the  act 
abolishes  certain  defenses  in  actions  for  personal  injuries  as 
to  all  employers,  in  all  cases  except  cases  where  an  employe 
gives  notice  that  he  will  not  be  bound  by  the  act.  These  de- 
fenses are  available  to  an  individual  or  a  private  corporation 
in  a  suit  brought  by  an  employe  who  has  so  given  notice.  In 
no  case  are  they  available  to  a  municipal  corporation,  because 
its  employes  are  in  any  event,  in  express  terms,  bound  by  the 
act.  The  defenses  referred  to  are  (1)  that  the  employe  was 
negligent,  unless  wilfully  so,  (2)  that  the  injury  was  caused 
by  the  negligense  of  a  fellow  servant,  (3)  that  the  employe 
had  assumed  the  risks  inherent  in,  incidental  to,  or  arising 
out  of  his  employment,  or  arising  from  failure  of  the  employer 
to  provide  and  maintain  safe  premises  and  suitable  appli- 
ances. 

Probably  no  one  will  now  deny  the  power  of  the  Legisla- 
ture to  abolish  these  defenses.  See,  Opinion  of  Justices 
(Mass.),  96  N.  E.  308;  Ives  v.  S.  B.  R.  Co.,  201  N.  Y.  271; 
Quackenbush  v.  Wis.  &  Minn.  R.  Co.,  62  Wis.  411;  Quacken- 
bush  v.  Wis.  &  Minn.  R.  Co.,  71  Wis.  472 ;  Employers'  Liabil- 
ity Cases,  207  U.  S.  463;  Kiley  v.  C.,  M.  &  St.  P.  R.  Co.,  138 
Wis.  215;  Wilmington  Star  M.  Co.  v.  Fulton,  205  U.  S.  60; 
Minnesota  I.  Co.  v.  Kline,  199  U.  S.  593;  Hall  v.  West  &  S.  M. 


MARY  WOOD  VS.  CITY  OF  DETROIT.  81 

Co.,  30  Wash.  447;  Johnson  v.  So.  Pac.  Co.,  196  U.  S.  1;  Walker 
v.  C.  C.  R.  Co.,  135  N.  C.  738;  Mott  v.  Southern  E.  Co.,  131  N. 
C.  1^4;  Cogdell  v.  Southern  R.  Co.,  129  N.  C.  398 ;  Thomas  v.R. 
&  A,  A.  L.  R.  Co.,  129  N.  C.  392;  Carterville  C.  Co.  v.  Abbott, 
181  111.  495;  Odin  C.  Co.  v.  Denman,  185  111.  413;  D.  H.  Davis 
C.  Co.  v.  Polland,  27  Ind.  App.  697;  Island  C.  Co.  v.  Swag- 
gerty,  159  Ind.  664;  U.  S.  C.  Co.  v.  Cooper,  (Ind.  App.)  82  N. 
E.  981 ;  Hailey  v.  T.  &  P.  R,  Co.,  113  La.  533 ;  Kilpatrick  v. 
<J.  T.  R.  Co.,  74  Vt.  288;  Johnson  v.  Mammoth  Vein  C.  Co., 
88  .Ark.  243;  Coley  v.  N.  C.  R.  Co.,  129  N.  C.  407;  Lore  v. 
American  Mfg.  Co.,  160  Mo.  608;  Mobile,  J.  &  K.  C.  R.  Co.  v. 
Turnipseed,  219  U.  S.  35 ;  Ditberner  v.  C.,  M.  &  St.  P.  R.  Co., 
47  Wis.  128;  Mo.  Pac.  R.  Co.  v.  Haley,  25  Kan.  35;  Mo.  Pac. 
R.  Co.  v.  Mackey,  33  Kan.  298;  Bucklew  v.  C.I.  R.  Co.,  64  Iowa 
603;  McAunich  v.  M.  &  M.  R.  Co.,  20  Iowa,  338;  Vindicator  C. 
G.  M.  Co.  v.  Firstbrook,  36  Colo.  498 ;  Deppe  v.  C.,  R.  I.  &  P. 
R.  Co.,  36  Iowa,  52;  Pierce  v.  Van  Dusen,  78  Fed.  693;  Camp- 
bell v.  Cook,  86  Tex.  630;  Thompson  v.  Central  R.  &  B.,  Co.,  54 
Ga.  509;  Georgia  R,  Co.  v.  Ivey,  73  Ga.  499;  Mo.  Pac.  R,  Co. 
v.  Castle,  172  Fed.  841 ;  Mo.  Pac.  R,  Co.  v.  Mackey,  127  U.  S. 
205. 

But  abolishing  these  defenses,  except  as  against  an  em- 
ploye who  refuses  to  be  bound  by  the  act,  is-  not  the  sole,  nor 
main,  purpose  of  the  act.  Obviously,  it  is  an  inducement, 
somewhat  coercive  in  character,  for  accomplishing  what  the 
legislature  regarded  as  a  desirable  result.  With  the  partic- 
ular defenses  abolished,  there  would  still  be  actions  in  which 
the  liability  of  the  employer  would  be  debatable  and  many  in- 
juries of  employes  are  attributable  to  pure  accident.  The  in- 
dividual and  the  private  corporation  employing  labor,  and  re- 
fusing to  be  bound  by  the  act,  may  elect  to  contest,  though 
with  limited  defenses,  liability  for  injuries;  municipal  corpo- 
rations may  not.  In  this  respect,  only,  the  act  affects,  differ- 
ently, municipal  corporations  and  other  corporation  and  in- 
dividual employers  of  labor.  It  expressly  provides  that 

11 


82 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


"the  State,  and  each  county,  city,  township,  incorporated  village 
and  school  district  therein,  and  each  incorporated  public  board  or 
public  commission  in  this  State  authorized  by  law  to  hold  property 
and  to  sue  or  be  sued  generally." 

shall  constitute  employers  subject  to  the  provisions  of  this 
act.  Act  No.  50,  Public  Acts  1913.  And  no  distinction  is 
suggested  between  employment  in  work  heretofore  classified 
as  governmental  in  character,  or  involving  the  exercise  on  the 
part  of  the  corporation  of  governmental  power,  and  employ- 
ment in  work  heretofore  classified  as  private  in  character. 

As  to  the  first  question  presented,  namely,  the  power  of  the 
Legislature  to  impose  upon  municipal  corporations  the  duties 
and  liabilities  created  by  the  act,  I  think  there  would  have 
been,  under  our  former  constitutions,  no  reasonable  doubt.  So 
long  as  it  was  admitted,  (People  y.  Hurlbut,  24  Mich.  44; 
Board  of  Park  Commissioners  v.  Common  Council  of  Detroit, 
28  Mich.  228),  that  the  State,  through  the  Legislature,  must 
determine  for  each  of  its  municipal  corporations  the  powers 
it  should  exercise  and  the  capacities  it  should  possess  and 
that  it  must  also  decide  what  restrictions  should  be  placed 
upon  them, 

"as  well  to  prevent  clashing  of  action  and  interest  in  the  state,  as 
to  protect  individual  corporators  against  injustice  and  oppression  at 
the  hands  of  the  local  majority," 

it  followed  that  municipal  activity  in  the  employment  of 
labor,  if  permitted  at  all,  might  be  permitted  only  upon  com- 
pliance with  such  conditions  as  are  found  in  the  act  here  con- 
sidered. In  Atkin  v.  Kansas,  191  U.  S.  207,  there  was  in- 
volved the  validity,  with  respect  to  the  fourteenth  amendment 
to  the  constitution  of  the  United  States,  of  a  statute  of  Kan- 
sas which,  after  fixing  eight  hours  as  a  day's  work  for  all  la- 
borers employed  by  or  on  behalf  of  the  state,  or  any  of  its 
municipalities,  made  it  unlawful  for  any  one  contracting  to 
do  any  public  work  to  require  or  permit  any  laborer  to  work 
longer  than  eight  hours  per  day  and  required  contractors  to 


MARY  WOOD  VS.  CITY  OF  DETROIT.  83 

pay  the  current  rate  of  daily  wages,  which  it  appeared  were 
fixed,  as  to  private  work,  upon  ten  hours'  daily  labor.  A  con- 
tractor was  convicted  and  sentenced  for  disobedience  of  the 
act.  In  the  opinion  of  the  court,  it  is  said,  among  other  things : 

"  'If  a  statute,'  counsel  observes,  'such  as  the  one  under  considera- 
tion is  justifiable,  should  it  not  apply  to  all  persons  and  to  all  voca- 
tions whatsoever?  Why -should  such  a  law  be  limited  to  contractors 
with  the  State  and  its  municipalities?  *  *  *  Why  should  the  law  allow 
a  contractor  to  agree  with  a  laborer  to  shovel  dirt  for  ten  hours  a 
day  in  performance  of  a  private  contract,  and  make  exactly  the 
same  act  under  similar  conditions  a  misdemeanor  when  done  in  the 
performance  of  a  contract  for  the  construction  of  a  public  improve- 
ment? Why  is  the  liberty  with  reference  to  contracting  restricted  in 
the  one  case  and  not  in  the  other?' 

"These  questions — indeed,  the  entire  argument  of  defendant's  coun- 
sel— seem  to  attach  too  little  consequence  to  the  relation  existing  be- 
tween a  State  and  its  municipal  corporations.  Such  corporations  are 
the  creatures,  mere  political  subdivisions,  of  the  State  for  the  purpose 
of  exercising  a  part  of  its  powers.  They  may  exert  only  such  powers 
as  are  expressly  granted  to  them,  or  such  as  may  be  necessarily  im- 
plied from  those  granted.  What  they  lawfully  do  of  a  public  charac- 
ter is  done  under  the  sanction  of  the  State.  They  are,  in  every 
essential  sense,  only  auxiliaries  of  the  State  for  the  purposes  of  local 
government.  They  may  be  created,  or,  having  been  created,  their 
powers  may  be  restricted  or  enlarged,  or  altogether  withdrawn  at  the 
will  of  the  legislature;  the  authority  of  the  legislature,  when  re- 
stricting or  withdrawing  such  powers,  being  subject  only  to  the 
fundamental  condition  that  the  collective  and  individual  rights  of 
the  people  of  the  municipality  shall  not  thereby  be  destroyed." 

But  it  is  argued,  in  effect  at  least,  and  the  point  is  self-in- 
truding into  any  discussion  of  the  subject,  that  the  constitu- 
tion of  IIHIU  lias  taken  from  the  Legislature  the  power  to  grant 
or  refuse  to  municipal  corporations  the  exercise  of  certain 
|;O\\<MS  and  the  possession  of  certain  capacities,  and  so  has 
denied  the  power  of  the  Legislature  to  restrict  and  control 
provident  and  necessary  action  of  municipalities  in  exercising 
powers  which  the  constitution  itself  has  given  to  them.  In 
other  words,  the  so-called  private  capacities  of  municipal  cor- 
porations enumerated  in  the  constitution  may  be  employed 
precisely  as  like  capacities  and  activities  of  private  corpora- 


84  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

tions  may  be  employed  in  so  far  as  legislative  control  is  con- 
cerned. 

In  a  recent  case,  in  considering  the  right  of  a  city  while 
operating  its  electric  light  plant  and  supplying  its  inhabitants 
with  current  to  also  in  that  connection  do  electrical  wiring 
on  private  premises  and  furnish  fixtures  and  other  acces- 
sories essential  and  convenient  in  using  electricity,  and  sus- 
taining the  right,  we  said: 

"The  old  law  of  municipal  trading,  involving  the  propriety  and 
expediency  of  authorizing  a  municipality  to  engage  in  general  busi- 
ness in  competition  with  its  citizens  conducting  a  private  business  of 
like  kind,  has  little  bearing  here,  but  the  rule  remains  that  taxation  can 
only  be  for  public  purposes  and  municipalities  have  no  express  or 
implied  power  to  engage  generally  in  private  business.  We  are  past 
the  general  question  of  the  validity  of  legislation  authorizing  mu- 
nicipal ownership  and  operation  of  plants  and  their  necessary  equip- 
ment to  furnish  the  concentrated  population  of  cities  with  certain 
general  needs  and  conveniences,  like  water,  light,  heat,  transportation, 
telephone  service,  etc.,  and  it  is  held  that  the  court  will  not  interfere 
with  any  reasonable  exercise  of  the  implied  powers  to  operate  such 
plants  in  a  business  way,  and  as  any  private  corporation  could  or 
would."  Andrews  v.  South  Haven,  22  D.  L.  N.,  689. 

The  constitution  of  1909  contains  the  following: 

Article  VIII: 

"Sec.  20.  The  legislature  shall  provide  by  a  general  law  for  the 
incorporation  of  cities,  and  by  a  general  law  for  the  incorporation  of 
villages;  such  general  laws  shall  limit  their  rate  of  taxation  for 
municipal  purposes,  and  restrict  their  powers  of  borrowing  money 
and  contracting  debts. 

"Sec.  21.  Under  such  general  laws,  the  electors  of  each  city  and 
village  shall  have  power  and  authority  to  frame,  adopt  and  amend 
its  charter,  and,  through  its  regularly  constituted  authority,  to  pass 
all  laws,  and  ordinances  relating  to  its  municipal  concerns,  subject 
to  the  constitution  and  general  laws  of  this  state. 

"Sec.  22.  Any  city  or  village  may  acquire,  own,  establish  and  main- 
tain, either  within  or  without  its  corporate  limits,  parks,  boulevards, 
cemeteries,  hospitals,  almshouses  and  all  works  which  involve  the 
public  health  or  safety. 

"Sec.  23.  Subject  to  the  provisions  of  this  constitution,  any  city  or 
village  may  acquire,  own  and  operate,  either  within  or  without  its 


MARY  WOOD  VS.  CITY  OF  DETROIT.  85 

corporate  limits,  public  utilities  for  supplying  water,  light,  heat,  power 
and  transportation  to  the  municipality  and  the  inhabitants  thereof; 
and  may  also  sell  and  deliver  water,  heat,  power  and  light  without 
its  corporate  limits  to  an  amount  not  to  exceed  twenty-five  per  cent  of 
that  furnished  by  it  within  the  corporate  limits;  and  may  operate 
transportation  lines  without  the  municipality  within  such  limits  as 
may  be  prescribed  by  law:  Provided,  That  the  right  to  own  or  operate 
transportation  facilities  shall  not  extend  to  any  city  or  village  of 
less  than  twenty-five  thousand  inhabitants. 

"Sec.  24.  When  a  city  or  village  is  authorized  to  acquire  or 
operate  any  public  utility,  it  may  issue  mortgage  bonds  therefor  be- 
yond the  general  limit  of  bonded  indebtedness  prescribed  by  law: 
Provided,  That  such  mortgage  bonds  issued  beyond  the  general  limit 
of  bonded  indebtedness  prescribed  by  law  shall  not  impose  any  lia- 
bility upon  such  city  or  village,  but  shall  be  secured  only  upon  the 
property  and  revenues  of  such  public  utility,  including  a  franchise 
stating  the  terms  upon  which,  in  case  of  foreclosure,  the  purchaser 
may  operate  the  same,  which  franchise  shall  in  no  case  extend  for 
a  longer  period  than  twenty  years  from  the  date  of  the  sale  of  such 
utility  and  franchise  on  foreclosure." 

The  general  law  passed  pursuant  to  the  constitutional  pro- 
vision is  Act  No.  279,  Public  Acts  of  1909,  amended  in  some 
respects  by  ,Act  No.  203,  Public  Acts  of  1911,  and  by  Act  No. 
5,  Public  Acts  of  1913.  Of  this  legislation  it  may  be  said,  gen- 
erally, that  it  recognizes  and  provides  for  the  exercise  of  the 
right  of  cities  to  acquire  and  control  property  in  accordance 
with  their  charters,  which  they  m>ay  make,  revise  or  amend, 
within  certain  limitations.  Among  other  things,  the  charters 
may  provide: 

"(i)  For  the  purchase  of  the  franchises,  if  any  exist,  and  of  prop- 
erty used  in  the  operation  of  companies  or  individuals  engaged  in  the 
plank-road,  cemetery,  hospital,  almshouse,  electric  light,  gas,  heat, 
water  and  power  business ;  and  in-  cities  having  not  less  than  twenty- 
five  thousand  inhabitants  the  purchase  of  the  franchise,  if  any,  and 
the  property  of  street  railway  and  tram  railway  companies,  State  and 
county  taxes  shall  be  paid  upon  such  transportation  property  so  pur- 
chased and  owned  by  any  such  city;" 

"(s)  For  the  exercise  of  all  municipal  powers  in  the  management 
and  control  of  municipal  property  and  in  the  administration  of  the 
municipal  government,  whether  such  powers  be  expressly  enumerated 
or  not;  for  any  act  to  advance  the  interest  of  the  city,  the  good  gov- 
ernment and  prosperity  of  the  municipality  and  its  inhabitants,  and 


86 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


through  its  regularly  constituted  authority  to  pass  all  laws  and 
ordinances  relating  to  its  municipal  concerns,  subject  to  the  consti- 
tution and  general  laws  of  this  State." 

The  city  of  Detroit,  the  plaintiff  in  certiorari,  exists  under 
a  special  charter,  being  of  the  class  referred  to  in  section  2  of 
the  act  as  follows : 

"Each  city  now  existing  shall  continue  with  all  its  present  rights 
and  powers  until  otherwise  provided  by  law." 

It  has,  however,  as  is  matter  of  common  knowledge,  amended 
its  charter  in  various  respects,  not  here  of  importance.  It 
possessed,  before  the  constitution  was  adopted,  various  powers 
relating  to  the  acquisition,  ownership  and  control  of  property, 
and  still  possesses  these  powers  and  in  their  exercise  has  ac- 
quired and  owns  property,  real  and  personal,  which  is  operated 
by  the  city.  In  the  management  and  control  of  this  property 
and  in  the  exercise  of  powers  concerning  streets  and  public 
places,  it  employs  and  pays  many  men. 

Counsel  for  plaintiff  in  certiorari  say: 

"If  the  municipality  in  its  private  business  capacity  is  a  private" 
corporation,  it  is  then  entitled  to  the  same  right  of  election  as  every 
other  private  corporation;  and  if  this  Act  is  compulsory  in  its  features 
as  applied  to  the  municipality,  it  then  compels  the  municipality  to  pay 
its  injured  employes,  and  results  in  the  taking  away  of  the  munici- 
pality's property  (its  money)  without  due  process  of  law,  for  the  rea- 
son that  by  due  process  of  law  is  meant  the  right  to  have  laws 
operate  on  all  alike,  not  subjecting  the  individuals  to  the  arbitrary 
exercise  of  the  powers  of  government  unrestrained  by  the  established 
principles  of  private  right  and  distributive  justice." 

The  constitution  of  1909  has  pointed  out  the  extent  of  the 
local  powers  and  capacities  of  cities  and  villages  with  more 
precision  than  was  done  in  former  constitutions,  thus  restrict- 
ing the  power  of  the  Legislature  to  grant  or  to  deny  to  partic- 
ular communities  the  enumerated  capacities  and  powers,  at 
will,  but  it  has  not  abolished  all  distinctions  between  munic- 
ipal and  other  corporations  and  individuals  Avith  respect  to 
the  exercises  of  the  powers  conferred  nor  denied  the  power  of 


MARY  WOOD -VS.  CITY  OF  DETROIT.  87 

the  Legislature  to  enact  general  laws  applicable  to  cities.  The 
distinction  between  powers  governmental  in  character  and 
those  private  in  character  as  exercised  by  municipal  corpora- 
tions does  not  involve  the  abrogation  of  the  distinction  be- 
tween private  municipal  activity  and  private  individual  activ- 
ity. To  employ  a  seeming  paradox,  private  municipal  activ- 
ities are  all  of  them  public.  What  has  been  called  private  in 
municipal  activity  is,  nevertheless  public  when  contrasted 
with  purely  private  enterprise  and  adventure. 

There  remains,  and  always  must  remain,  the  distinction 
pointed  out  in  the  opinion  last  referred  to.  The  actual  basis 
for  the  carrying  on  by  municipal  corporations  of  private 
municipal  business  is  taxation.  There  is  not,  and  there  can 
not  be,  any  merely  local  power  to  tax  persons  or  property,  and 
municipal  activity  may  still  be,  and  it  is  the  command  of  the 
constitution  that  it  shall  be,  restricted,  limited,  by  the  limita- 
tion of  the  power  to  tax,  to  borrow  money  and  to  exploit  the 
municipal  credit.  Moreover,  municipal  corporations  are  still 
State  agencies  and  as  such  subject  to  legislative  direction  and 
control,  none  the  less  so  because  the  exercise  of  such  control 
may  indirectly  affect  a  private  municipal  activity.  The  act, 
in  its  application  to  municipalities,  involves  no  right  of  local 
self-government,  or*  local  control  and  management  of  corpo- 
rate property.  It  deprives  the  municipality  of  none  of  its 
property,  because,  in  effect,  it  is  made  lawful  to  raise  by  tax 
the  money  required  to  pay  all  injured  employes  some  com- 
pensation. A  new  public  purpose  for  which  taxes  may  be 
levied  is  declared. 

The  subject  of  the  legislation  which  is  in  question  here  is  a 
social  subject,  in  its  very  nature  referable  for  community 
action  to  the  State  itself.  A  social  theory  needed  to  be 
crystallized  into  law.  Its  nature  was  such  that  no  community 
less  than  the  State  could  be  appealed  to  for  this  purpose.  The 
theory  of  this  and  of  similar  legislation  includes  the  essential 
idea  that  the  industrial  worker  is  himself  a  social  asset  and 
ought  not,  in  any  case,  to  bear  the  whole  result  of  a  personal 
injury  arising  out  of  and  in  the  course  of  his  employment;  that 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


society  at  large  ought  to  share  the  loss.  The  subject  is  one  of 
governmental  control,  of  public  policy,  necessarily  committed 
to  the  Legislature.  Whether  it  is  or  is  not  denominated  a 
police  regulation,  municipal  corporationss  are,  for  the  purpose 
of  carrying  out  such  a  measure,  subject  to  legislative  control. 
The  first  question  is  therefore  answered  adversely  to  the 
plaintiff  in  certiorari. 

The  second  question,  namely,  whether  the  classification  of 
employers  as  municipal  and  other  can  be  defended,  is,  in  prin- 
ciple, answered  by  what  has  been  already  said.  The  legisla- 
ture was  confronted  with  the  duty  to  devise  a  plan,  complete 
in  itself,  for  dealing  with  the  subject  and  accomplishing  the 
desired  purpose.  The  limitation  upon  its  power  in  this  direc- 
tion is  the  constitution,  which  I  think  it  has  not  contravened. 
The  burden  created,  if  it  can  be  called  a  burden,  is  uniform  as 
to  each  individual  of  each  class.  There  is  no  vested  right  of 
any  person  to  labor  for  a  municipal  corporation. 

There  is  also  a  consideration  of  expediency  which  may  have 
influenced  the  Legislature.  Private  corporations  and  individ- 
uals exploit  private  capital.  Out  of  this,  in  the  first  instance, 
the  compensation  of  employes  must  be  paid.  The  burden  thus 
assumed  by  the  employer  must  be  distributed  by  his  action  in 
the  course  of  his  business.  In  the  case  of  a  municipal  corpo- 
ration the  burden  assumed  by  it  as  employer  is  distributed, 
immediately  and  finally,  upon  the  communit}7  subject  to  be 
taxed  to  raise  the  necessary  fund.  However  that  may  be, 
there  is  found  in  the  imposition  of  the  law  upon  municipal 
corporations  no  invasion  of  private  rights,  but  only  the  enforce- 
ment of  a  State  policy  which,  in  view  of  municipal  activities, 
ought  to  be  uniformly  accepted  and  observed  by  all  municipal 
corporations. 

The  order  of  the  Industrial  Accident  Board  is  affirmed. 


MATWICZUK  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  89 


MARYANNA  MATWICZUK, 

Applicant, 
vs. 

AMERICAN  CAR  &  FOUNDRY  COMPANY, 
Respondent. 

NOTICE  OF  CLAIM — POWER  OF  ATTORNEY. 

Applicant's  decedent  was  killed  while  in  respondent's  employ.  His 
brother-in-law  immediately  consulted  an  attorney  who  notified 
respondent  of  the  widow's  claim  and  suggested  an  early  settlement. 
Decedent's  widow  lived  in  Poland  and  she  gave  his  brother-in-law 
power  of  attorney 'to  act  for  her,  which  was  executed  in  Poland 
and  received  by  him  more  than  six  months  after  the  date  of  the 
injury.  Respondent  refused  to  pay  compensation  on  the  ground 
that  the  brother-in-law  had  no  authority  to  make  the  application 
for  compensation  and  that  the  power  of  attorney  was  given  him 
•  more  than  six  months  after  the  injury,  and  therefore  he  was 
barred  from  making  such  claim. 

HELD:     1.     That  the  attorney's  letter  notifying  respondent  of  the 
death  of  decedent  was  sufficient  notice  of  a  claim  for  compensation. 

2.     That  the  power  of  attorney  took  effect  at  the  time  of  mail- 
ing rather  than  at  the  time  of  delivery. 


Appeal  of  American  Car  &  Foundry  Company  from  the  de- 
cision of  an  arbitration  committee  awarding  compensation  to 
Maryanna  Matwiczuk  for  the  death  of  her  husband.  Affirmed. 


Opinion  by  the  Board: 

It  is  conceded  in  this  case  that  Joseph  Matwiczuk,  the  hus- 
band of  the  applicant,  met  his  death  on  May  22,  1913,  as  a 
result  of  injuries  received  while  in  the  employ  of  respondent. 
It  is  undisputed  that  the  injuries  resulting  in  his  death  arose 
out  of  and  in  the  course  of  his  employment,  and  that  his 
widow  would  be  entitled  to  the  compensation  fixed  by  law  if 
claim  therefor  was  made  within  the  time  fixed  by  the  Compen- 


90  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

sation  Act.  It  is  undisputed  that  on  the  day  following  the 
death  of  deceased,  his  brother-in-law,  Joseph  Postinack,  con- 
sulted an  attorney  in  the  city  of  Detroit,  and  that  said  attor- 
ney wrote  a  letter  to  respondent  notifying  it  of  the  death  of 
Joseph  Matwiczuk  and  further  stating  that  his  death  was 
due  to  any  injury  received  while  working  for  respondent,  that 
deceased  had  a  wife  and  four  children  living  in  Poland,  who 
were  dependent  upon  him,  and  closing  the  letter  as  follows: 

"If  you  care  to  offer  reasonable  compensation  in  settlement  there 
is  no  doubt  that  it  will  be  considered.  Awaiting  an  immediate  reply, 
I  remain  (Signature)." 

The  widow  of  deceased  in  fact  resided  in  Poland  as  stated 
in  said  notice,  and  the  brother-in-law  of  deceased  above-men- 
tioned assumed  to  act  for  her  in  consulting  said  attorney  and 
making  the  aforesaid  claim.  If  is  conceded  that  Postinack  at 
the  time  he  consulted  said  attorney  had  not  been  authorized  so 
to  do  by  the  widow,  as  this  was  done  very  shortly  after  the 
death  and  before  the  widow  even  had  knowledge  of  the  acci- 
dent, her  residence  being  in  a  small  town  in  the  interior  of 
Poland.  It  is  contended  in  this  case  that  the  claim  made 
through  the  action  of  Postinack  is  a  nullity  because  he  was 
not  authorized  so  to  act,  and  that  the  letter  from  said  attor- 
ney did  not  constitute  the  making  of  a  claim  for  compensation 
within  the  meanning  of  the  law. 

In  the  opinion  of  the  Board  the  provision  of  the  Compensa- 
tion Law  relative  to  making  claims  for  compensation  should 
not  be  technically  construed,  and  that  the  communication 
which  was  sent  to  the  employer  in  this  case  was  sufficient  to 
fairly  apprise  it  of  the  fact  that  compensation  was  claimed 
for  the  death  of  decedent.  The  essential  function  to  be  per- 
formed by  notice  of  claim  for  injury  under  this  law  is  to  bring 
home  to  the  employer  at  some  time  within  6  months  after  the 
accident  knowledge  of  the  fact  that  a  claim  for  compensation 
therefor  is  being  asserted.  We  think  that  the  letter  in  ques- 
tion must  be  held  to  have  fairly  apprised  respondent  of  this 
fact. 


MATWICZUK  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  91 

At  the  time  of  making  the  claim,  Postiiiack  had  not  been 
authorized  to  act  for  applicant  as  before  stated,  but  about  5 
months  after  the  death  of  deceased  applicant  executed  at  her 
home  in  Poland  a  written  power  of  attorney  authorizing  Post- 
inack to  act  in  her  behalf  in  all  things  relating  to  the  prosecu- 
tion of  her  claim  for  compensation.  When  this  power  of  at- 
torney reached  Postinack  in  this  country  a  little  more  than  6 
months  had  elapsed  since  the  death  of  decedent,  and  it  is  con- 
tended by  respondent  that  the  power  of  attorney  did  not  take 
effect  until  it  was  actually  delivered  in  this  country,  and  that 
being  after  the  expiration  of  the  six  months  period,  it  could 
not  operate  as  a  ratification  of  the  previous  acts  of  Postinack. 
This  contention  is  largely  technical  and  without  merit.  We 
are  inclined  to  the  opinion  that  the  mailing  of  the  power  of 
attorney  in  Poland  constituted  a  sufficient  delivery.  We  are 
unable  to  find  any  provision  in  the  act  requiring  the  person 
who  makes  the  claim  on  behalf  of  dependents  of  a  deceased 
workman  to  be  duly  authorized  agent.  It  is  the  evident  in- 
tention of  the  Law  that  such  claim  may  be  made  by  near  rela- 
tives or  friends  without  formal  authorization  from  the  de- 
pendents. To  hold  otherwise  would  defeat  compensation  in 
many  cases  where  the  dependents  of  deceased  workmen  live  in 
distant  lands,  or  where  such  dependents  are  minors.  The  de- 
cision of  the  committee  on  arbitration  awarding  compensation 
to  the  applicant  is  affirmed. 


92  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


The  decision  of  the  Board  in  this  case  was  affirmed  by  the 
Supreme  Court,  the  following  being  the  opinion  filed  by  said 
Court : 

SUPREME  COURT. 

MARYANNA  MATWIOZUK, 

Claimant  and  Appellee, 
vs. 

AMERICAN  CAR  &  FOUNDRY  COMPANY, 
Defendant  and  Appellant. 

MASTER  AND  SERVANT — INJURIES  TO  SERVANT — RIGHT  TO  COMPENSATION — 
COMPLIANCE  WITH  STATUTES. 

Act  No.  10,  Public  Acts  of  1912,  §  15,  Part  2,  provides  that  no 
proceedings  for  compensation  for  injury  shall  he  maintained 
without  notice  of  the  injury  within  3  months,  and  claim  for 
compensation  within  6  months,  after  the  injury.  Section  1ft 
provides  that  the  notice  shall  be  in  writing,  in  ordinary  lan- 
guage, and  shall  state  the  time,  place,  and  cause  of  the  injury, 
and  be  signed,  in  the  event  of  the  employe's  death,  by  his  de- 
pendents or  others  in  their  behalf.  Section  18  provides  that 
want  of  written  notice  shall  not  bar  the  action,  if  the  employer 
has  notice  or  knowledge  of  the  injury.  Deceased  employe  had 
a  wife  and  family  in  Poland.  On  his  death,  and  on  the  next 
day,  his  brother-in-law  employed  an  attorney,  who  wrote  a 
letter  notifying  the  employer  of  the  death  at  a  certain  hour  and 
day,  that  the  cause  was  improper  insulation  of  electric  wires, 
and  that  deceased  had  a  family  in  Poland  dependent  on  him, 
and  asking  compensation.  A  power  of  attorney  ratifying  such 
act  was  executed  and  mailed  in  Poland  by  the  wife  to  the 
brother-in-law  within  six  months,  but  reached  him  after  the 
expiration  of  that  period. 

HELD:  That,  as  the  statute  must  not  be  technically  construed, 
the  notice  given  was  sufficient,  since  it  gave  the  employer  full 
opportunity  to  investigate  the  accident. 


Certiorari  to  Industrial  Accident  Board. 

Proceedings   under   the  Workmen's    Compensation   Act  by 


MATWICZUK  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  93 

Maryanna  Matwiczuk  to  recover  compensation  for  the  death 
of  her  husband  against  the  American  Car  &  Foundry  Com- 
pany, employer.  On  certiorari  to  review  the  action  of  the  In- 
dustrial Accident  Board  in  confirming  an  award  for  the  claim- 
ant. Affirmed. 

L.  A.  Koschiski,  of  Detroit,  for  claimant. 
E.  D.  Alexander,  of  Detroit,  for  defendant. 

MOORE,  J.  This  is  certiorari  to  review  the  action  of  the 
Industrial  Accident  Board  in  confirming  an  award  made  in 
favor  of  the  claimant. 

The  questions  involved  are  so  clearly  stated  in  the  opinion 
rendered  by  the  Board  that  we  quote  from  it. 

"It  is  conceded  in  this  case  that  Joseph  Matwiczuk,  the  husband  of 
the  applicant,  met  his  death  on  May  22,  1913,  as  a  result  of  the  in- 
juries received  while  in  the  employ  of  respondent.  It  is  undisputed 
that  the  injuries  resulting  in  his  death  arose  out  of  and  in  the  course 
of  his  employment,  and  that  his  widow  would  be  entitled  to  the  com- 
pensation fixed  by  law  if  claim  therefor  was  made  within  the  time 
fixed  by  the  Compensation  Act.  It  is  undisputed  that  on  the  day 
following  the  death  of  deceased,  his  brother-in-law,  Joseph  Postinack, 
consulted  an  attorney  in  the  city  of  Detroit,  and  that  said  attorney 
wrote  a  letter  to  respondent  notifying  it  of  the  death  of  Joseph 
Matwiczuk  and  further  stating  that  his  death  was  due  to  an  injury 
received  while  working  for  respondent,  that  deceased  had  a  wife  and 
four  children  living  in  Poland,  who  were  dependent  upon  him,  and 
closing  the  letter  as  follows: 

"If  you  care  to  offer  reasonable  compensation  in  settlement  there 
is  no  doubt  that  it  will  be  considered.  Awaiting  an  immediate  reply, 
I  remain,  (Signature)." 

"The  widow  of  deceased  in  fact -resided  in  Poland  as  stated  in  said 
notice,  and  the  brother-in-law  of  deceased  above  mentioned  assumed 
to  act  for  her  in  consulting  said  attorney  and  making  the  aforesaid 
claim.  It  is  conceded  that  Postinack  at  the  time  he  consulted  said 
attorney  had  not  been  authorized  so  to  do  by  the  widow,  as  this  was 
done  very  shortly  after  the  death  and  before  the  widow  even  had 
knowledge  of  the  accident,  her  residence  being  in  a  small  town  in 
the  interior  of  Poland.  It  is  contended  in  this  case  that  the  claim 
made  through  the  action  of  Postinack  is  a  nullity  because  he  was  not 
authorized  so  to  act,  and  that  the  letter  from  said  attorney  did  not 


94 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


constitute  the  making  of  a  claim  for  compensation  within  the  mean- 
ing of  the  law." 

"In  the  opinion  of  the  Board  the  provision  of  the  Compensation  Law 
relative  to  making  claims  for  compensation  should  not  be  technically 
construed,  and  that  the  communication  which  was  sent  to  the  em* 
ployer  in  this  case  was  sufficient  to  fairly  apprise  it  of  the  fact  that, 
compensation  was  claimed  for  the  death  of  the  decedent.  The  essen- 
tial function  to  be  performed  by  notice  of  claim  for  injury  under 
this  law  is  to  bring  home  to  the  employer  at  some  time  within  six 
months  after  the  accident  knowledge  of  the  fact  that  a  claim  for 
compensation  therefor  is  being  asserted.  We  think  that  the  letter  in 
question  must  be  held  to  have  fairly  apprised  respondent  of  this  fact." 

"At  the  time  of  making  the  claim,  Postinack  has  not  been  authorized 
to  act  for  applicant  as  before  stated,  but  about  five  months  after  the 
death  of  deceased,  applicant  executed  at  her  home  in  Poland  a  written, 
power  of  attorney  authorizing  Postinack  to  act  in  her  behalf  in  all 
things  relating  to  the  prosecution  of  her  claim  for  compensation. 
When  this  power  of  attorney  reached  Postinack  in  this  country  a 
little  more  than  six  months  had  elapsed  since  the  death  of  decedent, 
and  it  is  contended  by  respondent  that  the  power  of  attorney  did  not 
take  effect  until  it  was  actually  delivered  in  this  country,  and  that 
being  after  expiration  of  the  six  months'  period,  it  could  not  operate 
as  a  ratification  of  the  previous  acts  of  Postinack.  This  contention  is 
largely  technical  and  without  merit.  We  are  inclined  to  the  opinion, 
that  the  mailing  of  the  power  of  attorney  in  Poland  constituted  a 
sufficient  delivery.  We  are  unable  to  find  any  provision  in  the  act 
requiring  the  person  who  makes  the  claim  on  behalf  of  the  dependents 
of  a  deceased  workman  to  be  a  fully  authorized  agent.  It  is  the 
evident  intention  of  the  lav/  that  such  claim  may  be  made  by  near 
relatives  or  friends  without  formal  authorization  from  the  dependents. 
To  hold  otherwise  would  defeat  compensation  in  many  cases  where 
the  dependents  of  deceased  workmen  live  in  distant  lands,  or  where 
such  dependents  are  minors.  The  decision  of  the  committee  on  arbi- 
tration awarding  compensation  to  the  applicant  is  affirmed." 

Counsel  for  appellant  argue  two  propositions : 

1.  Was  the  letter  sent  by  Daniel  Minock  to  the  American  Car  am 
Foundry  Company  a  claim  for  compensation  such  as  is  contemplated 
by  the  terms  of  the  Workmen's  Compensation  Act? 

2.  If  this  letter  was  a  claim  sufficient  to  comply  with  the  terms  of 
the  Workmen's  Compensation  Law,  was  it  sufficiently  authorized  to- 
be  binding  upon  the  American  Car  and  Foundry  Company? 


Under  the  first  of  these  propositions  it  is  argued  that  when- 


MATWICZUK  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  95 

the  attorney  sent  the  letter  he  was  not  presenting  a  claim  un- 
der the  compensation  law,  but  had  in  mind  liability  under  the 
common  law  for  negligence. 

Under  the  second  proposition  it  is  urged  that  the  power  of 
attorney  did  not  take  effect  until  after  the  six  months  had  ex- 
pired, and  that  as  the  claimant  could  not  nMe  a  claim  at  that 
time  she  could  not  ratify  what  had  been  done  before. 

It  is  also  claimed  that  the  power  of  attorney  related  to  the 
future  and  not  to  what  had  already  been  done.  Counsel  for 
appellant  admit  that  the  propositions  involved  in  this  case  are 
newr  and  therefore  undecided. 

It  may  be  helpful  to  quote  in  full  the  letter  which  was  sent : 

"Detroit,  Mich.,  May  22,  A.  D.  '13. 
American  Car  and  Foundry  Co., 
Gentlemen : 

Joseph  Pasternack,  who  resides  at  No.  621  Palmer  Ave.,  this  city, 
informs  me  that  his  brother-in-law  was  killed  while  working  in  your 
employ  about  1  p.  m.  Wednesday,  May  21st,  A.  D.  1913. 

He  claims  that  his  brother-in-law,  whose  name  is  Joseph  Natfechuck, 
was  working  on  an  electric  drill,  that  the  electric  wires  were  not 
properly  insulated  and  that  the  wires  were  lying  in  water,  that  ow- 
ing to  the  fact  that  when  this  man  came  in  contact  with  the  wires 
he  received  a  shock  through  his  body  which  finally  caused  his  death. 

This  man  is  married  and  his  wife  and  four  children  are  living  in 
Poland  and  are  and  were  dependent  on  him  for  their  support  and 
maintenance. 

If  you  care  to  offer  a  reasonable  compensation  in  settlement  there 
is  no  doubt  that  it  will  be  considered. 

Awaiting  an  immediate  reply,  I  remain, 

(Sgd)  Daniel  L.  Minock." 

The  record  discloses  that  the  claimant  was  advised  of  the 
death  of  her  husband.  It  does  jiot  appear  whether  she  was  ad- 
vised of  the  sending  of  the  letter  just  quoted.  On  October  28, 
1913,  she  executed  before  a  Notary  Public  a  formal  power  of 
attorney  authorizing  her  brother  Joseph  Postinack  to  look 
after  her  claim  growing  out  of  the  death  of  her  husband,  the 
concluding  part  of  the  power  of  attorney  reads  as  follows : 

"Said  Mary  Matwiczuk  hereby  consents  to  and  agrees  with  every- 
thing that  said  Joseph,  son  of  Michael  Pasternak,  her  duly  appointed 


96  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

attorney  in  fact,  or  his  duly  selected   attorneys,   may  legally   do  or 
perform,  and  she  further  ratines  any  of  their  actions." 

By  due  course  this  power  of  attorney  reached  her  brother, 
Joseph  Posternak,  though  not  until  more  than  six  months 
after  the  death  of  her  husband. 

We  may  now  consider  the  compensation  law,  Act  10,  Pub- 
lic Acts,  1912.  The  provisions  of  the  compensation  law  appli- 
cable are  Section  15,  of  Part  II  which  reads: 

"No  proceedings  for  compensation  for  injury  under  this  act  shall 
be  maintained  unless  a  Notice  of  the  Injury  shall  have  been  given 
to  the  employer  three  months  after  the  happening  thereof,  and  un- 
less the  Claim  For  Compensation  with  respect  to  such  injury  shall 
have  been  made  within  six  months  after  the  occurrence  of  the 
same,  etc." 

and  Section  16  which  reads : 

"The  said  Notice  shall  be  in  writing  and  shall  state  in  ordinary 
language  the  time,  place  and  cause  of  the  injury  and  shall  be  signed 
by  the  person  injured  or  by  a  person  in  his  behalf,  or  in  the  event 
of  his  death  by  his  dependents  or  by  a  person  in  their  behalf." 

Section  18  provides: 

"Want  of  such  written  notice  shall  not  be  a  bar  to  the  proceeding 
if  it  be  shown  that  the  employer  had  notice  or  knowledge  of  the 
injury." 

See  Pwrdy  vs.  City  of  Sault  Ste.  Mane,  in  which  an  opinion 
was  handed  down  this  term. 

It  is  clear  that  what  was  done  gave  the  employer  notice  of 
the  injury  thus  affording  an  opportunity  for  a  full  investiga- 
tion. It  also  gave  notice  of  who  were  dependents.  We  think 
it  also  is  clear  that  the  company  was  informed  that  the 
brother-in-law  by  employing  the  attorney  who  wrote  the  letter 
giving  this  information,  was  seeking  to  protect  the  interests 
of  the  widow  and  minor  children  who  were  in  Poland,  and  the 
inference  follows  almost  as  of  course  that  a  claim  was  urged 
in  their  behalf  growing  out  of  the  death  of  the  husband  and 
father. 


MATWICZUK  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  97 

The  language  of  the  Statute  indicates  that  the  notice  and 
claim  might  be  in  ordinary  language  and  might  be  signed  by 
dependents  "or  by  a  person  in  their  behalf/'  and  what  would 
be  more  natural  than  to  assume  that  a  brother  of  the  widow 
in  her  absence  would  act  for  her. 

What  was  done  gave  to  the  employer  every  opportunity  to 
investigate  the  accident,  and  knowledge  of  all  material  things 
relating  thereto  as  fully  as  though  an  application  had  been 
made  in  a  formal  way  by  the  widow  upon  the  day  when  the 
letter  was  written. 

The  next  day  after  the  injury  the  employer  was  notified  of 
it,  the  result  of  it,  the  time  and  place  and  cause  of  its  hap- 
pening and  of  the  persons  who  were  dependent.  This  notice 
was  given  not  by  an  outsider  but  through  the  agency  of  the 
brother-in-law  of  the  deceased,  the  brother  of  the  widow.  What 
was  done  was  notice  of  a  claim  by  the  deceased's  dependents 
made  by  a  person  in  their  behalf.  We  think  it  too  technical 
to  say  that  a  notice  and  claim  made  within  twenty-four  hours 
after  the  accident  caused  to  be  given  as  in  this  case  in  behalf 
of  the  widow  who  could  not  make  the  claim  herself  because  of 
the  distance  from  where  she  lived,  which  action  was  ratified 
by  her  on  being  advised  of  the  situation,  must  fail  because  the 
ratification  did  not  reach  this  country  within  six  months  from 
the  time  of  the  accident,  to  so  hold  would  not  be  according  to 
the  letter  or  the  spirit  of  the  employers'  Liability  Act. 

The  action  of  the  Industrial  Board  is  affirmed. 
13 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


WILLIAM  M.  AGLER, 

Applicant, 
vs.  * 
MICHIGAN  AGRICULTURAL  COLLEGE, 

Respondent. 

CASUAL  EMPLOYMENT — CONSTITUTIONAL  BODIES. 
Applicant  was  employed  by  the   Michigan  Agricultural   College 
make  some  repairs  on  the  roofs  of  some  of  its  buildings.    He  ws 
not  a  regular  employe  of  the  college,  but  was  merely  called  upoi 
as  his  services  were  needed.    While  engaged  in  one  of  these  jol 
he  fell  and  received  injuries  which  incapacitated  him  for  a  loi 
period.     Compensation  was  refused  because  it  was  contended  ihi 
under  sub.  2  of  sec.  7,  Part  I,  of  the  Compensation  Law  he  w$ 
a  casual  employe.     Also  that  the  Michigan  Agricultural  Collet 
is   a   constitutional   body,   not  subject   to   legislative   control  am 
therefore  not  liable  to  pay  compensation  in  any  case  of  injury. 

HELD:  1.  That  the  proviso  of  sub.  2,  of  sec.  7,  excluding  the 
"whose  employment  is  but  casual,"  does  not  apply  to  employes 
the  state  or  of  municipal  corporations  within  the  state. 

2.     The  Michigan  Agricultural  College  is  subject  to  the  general 
laws  of  the  state  with  reference  to  its  liability  to  others. 


Opinion  by  the  Board. 


In  the  summer  of  1912,  the  applicant,  Willis  M.  Aglerr 
was  employed  by  the  Michigan  Agricultural  College  to  repair 
the  tin,  metal  and  slate  portions  of  roofs  and  porticos  of  th( 
buildings  on  the  college  grounds  for  a  period  of  nearly  thr< 
months,  receiving  for  his  work  40  cents  per  hour.     This  was 
the  first  work  Agler  had  ever  done  for  the  college,  and  at  it* 
conclusion  no  arrangement  was  made  with  him  for  any  fui 
ther  work.     In  the  spring  of  1913,  the  heavy  winds  injure* 
some  of  the  tin  work  on  some  of  the  porticos  of  the  *col 
buildings  and  Agler  was  employed  to  repair  the  same,  he  to  d< 
the  work  at  40  cents  per  hour,  the  same  as  the  previous  sum- 
mer.   Mr.  Agler  is  a  tinner  and  roofer  by  trade,  but  does  no1 


AGLER  vs.  MICHIGAN  AGRICULTURAL  COLLEGE.  99 

maintain  a  regular  shop  or  place  of  business,  except  that  he 
has  a  room  in  his  basement  where  his  tools  and  stock  are  kept 
and  where  some  of  his  work  is  done.  He  was  accustomed  to 
take  such  work  and  jobs  in  his  line  as  he  could  procure,  work- 
ing generally  by  the  hour,  and  when  he  undertook  to  make  the 
repairs  on  the  porches  in  question  he  knew  it  would  require 
but  two  or  three  days'  work  for  himself  and  a  helper.  He 
knew  that  he  was  subject  to  the  direction  of  the  proper  officials 
of  the  college  and  could  be  discharged  by  them  at  any  time. 
The  college  furnished  the  material  for  making  the  repairs,  Mr. 
Agler  only  furnishing  part  of  his  tools.  Altogether  the  college 
has  about  60  buildings  and  employs  on  an  average  125  em- 
ployes in  and  about  the  grounds  and  buildings  in  addition  to 
the  faculty  of  the  college.  It  does  not  employ  regularly  tin- 
ners or  roofers. 

On  April  18,  1913,  while  Mr.  Agler  was  engaged  in  making 
the  repairs  above  referred  to,  he  fell  from  a  ladder,  fracturing 
his  left  leg.  The  injury  will  probably  not  result  in  permanent 
disability,  but  it  may  be  a  considerable  time  before  the  injured 
leg  will  be  as  well  as  prior  to  the  injury.  Had  it  not  been  for 
the  accident  Mr.  Agler  would  have  finished  the  work  that  aft- 
ernoon, the  total  amount  of  time  required  in  completing  the 
work  being  41  hours  for  two  men  or  something  over  20  hours 
each.  The  respondent  contends  that  it  is  not  liable  to  pay 
compensation  because  the  work  in  which  Mr.  Agler  was  en- 
gaged Avhen  injured  was  casual  employment. 

This  involves  the  construction  of  Section  7,  Part  1  of  the 
Compensation  Law,  which  is  as  follows: 


term  'employe'  as  used  in  this  act  shall  be  construed  to  mean: 

1.  Every  person  in  the  service  of  the  state  or  of  any  county,  city, 
township,  incorporated   village  or  school   district  therein,   under  any 
appointment,  or  contract  of  hire,  express  or  implied,  oral  or  written, 
except  any  official  of  the  state,  or  of  any  county,  city,  township,  in- 
corporated village  or  school  district  therein. 

2.  Every  person   in  the  service  of  another   under  any  contract  of 
hire,  express  or   implied,  oral  or  written,  including  aliens,   and   also 
including  minors  who  are  legally  permitted  to  work  under  the  laws 
of  the  state  who,  for  the  purposes  of  this  act,  shall  be  considered  the 


100 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


same  and  have  the  same  power  to  contract  as  adult  employes,  but  not 
including  any  person  whose  employment  is  but  casual  or  is  not  in 
the  usual  course  of  the  trade,  business,  profession  or  occupation  of  his 
employer." 

The  next  section  of  the  act,  being  Section  8  of  Part  I,  pro- 
vides "any  employe  as  denned  in  subdivision  one  of  the  pre- 
ceding section  shall  be  subject  to  the  provisions  of  this  act 
and  of  any  act  amendatory  thereof."  The  remainder  of  Sec- 
tion 8  provides  in  detail  that  any  employe  mentioned  in  sub- 
division two  of  the  preceding  section  shall  become  subject  to 
the  provision  of  the  act  by  his  employer  accepting  the  same, 
and  the  failure  of  such  employe  to  make  his  election  not  to  be 
subject  to  the  act.  It  seems  clearly  apparent  from  these  pro- 
visions that  two  distinct  classes  of  employes  are  created,  one 
of  the  said  classes  being  denned  by  subdivision  one,  and  the 
other  by  subdivision  two  of  said  Section  7.  The  Agricultural 
College  being  a  state  institution,  its  employes  are  in  the  ser- 
vice of  the  state  within  the  meaning  of  the  act  and  fall  within 
the  class  of  employes  denned  in  subdivision  one  above  quoted. 
The  proviso  which  excludes  from  the  benefit  of  the  compensa- 
tion law  those  "whose  employment  is  but  casual"  is  found  only 
in  subdivision  two  of  said  section  and  applies  only  to  the 
class  of  employes  defined  in  said  subdivision  two.  It  does  not 
apply  to  employes  of  the  state  or  of  municipal  corporations 
within  the  state. 

At  the  re-hearing  of  this  case  on  appeal  to  the  full  Board, 
the  point  was  raised  by  respondent  for  the  first  time  that  it  is 
a  constitutional  body  not  subject  to  legislative  control,  and 
for  that  reason  is  not  liable  to  pay  compensation  in  this  or 
any  other  case.  In  support  of  this  contention  the  cases  of 
Bauer  vs.  State  Board  of  Agriculture,  1(>4  Michigan  415,  and 
Board  of  Regents  vs.  Auditor  General  167  Michigan  444  are 
cited.  We  have  examined  the  above  authorities  and  carefully 
considered  respondent's  claim,  and  have  reached  the  conclu- 
sion that  the  position  taken  in  untenable.  The  authorities  re- 
ferred to  do  not  go  to  the  extent  of  holding  that  respondent  is 
not  subject  to  the  general  laws  of  the  state,  or  that  it  may 


AGLER  vs.  MICHIGAN  AGRICULTURAL  COLLEGE.  101 

repudiate  its  obligations  because  it  is  a  constitutional  body. 
The  substance  of  the  above  authorities  is  that,  being  a  consti- 
tutional body  with  certain  powers  and  functions  granted  and 
fixed  by  the  constitution,  it  may  determine  the  purpose  and 
manner  of  expending  its  funds,  and  that  the  legislature  may 
not  interfere  with  or  abridge  such  right.  The  precise  question 
decided  in  the  Agricultural  College  case  was  that  the  Board 
might  use  its  funds  to  construct  a  building  in  East  Lansing 
to  be  leased  to  the  United  States  Government  for  a  Post  Office, 
and  that  such  action  by  the  State  Board  of  Agriculture  in  ex- 
pending its  funds  could  not  be  interfered  with  by  the  Auditor 
General  or  the  Legislature.  This  is  a  very  different  question 
from  the  one  now  before  us  for  determination.  The  State 
Board  of  Agriculture  is  a  corporate  body,  an  artificial  person, 
and  even  though  it  be  of  a  high  class  because  created  by  the 
constitution,  it  is  subject  to  the  general  laws  of  the  state,  is 
protected  by  such  general  laws  as  to  its  property,  its  con- 
tracts, and  the  liabiliy  of  others  to  it;  and  it  is  subject  to  the 
general  laws  of  the  state  with  reference  to  its  liabilities  to 
others.  It  is  conducting  a  large  enterprise  having  some  60 
buildings,  125  employes  besides  its  corps  of  professors,  teach- 
ers and  instructors.  It  exists  by  virtue  of  the  laws  of  Michi- 
gan, is  protected  by  such  law^s,  and  is  subject  to  such  laws  in 
ail  general  matters.  The  award  of  the  committee  on  arbitra- 
tion is  affirmed. 

The  above  case  was  appealed  to  the  Supreme  Court  and  re- 
versed on  the  ground  that  the  State  Board  of  Agriculture, 
(Agricultural  College),  is  a  constitutional  body,  and  not  sub- 
ject to  general  legislative  control,  and  not  having  elected  to 
come  under  the  provisions  of  the  Workmen's  Compensation 
Law,  the  Michigan  Agricultural  College  is  not  subject  to  its 
terms.  The  question  raised  on  the  hearing  before  the  Board 
and  discussed  in  the  Board's  opinion  as  to  the  applicability 
of  the  provision  of  the  Compensation  Act  relating  to  casual 
employment  to  cases  where  a  municipality  is  the  employer,  is 
not  discussed  in  the  opinion  of  the  Supreme  Court,  and  the 


102  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Board's  position  upon  the  point  is  not  disturbed.     The  fol- 
lowing is  the  opinion  of  the  Supreme  Court  in  the  case: 


SUPREME  COURT. 

WILLIAM  AGLER, 

Applicant, 
vs. 

MICHIGAN  AGRICULTURAL  COLLEGE, 
Respondent. 

1.  COLLEGES  AND  UNIVERSITIES — CONSTITUTIONAL  LAW — MICHIGAN  AGRI- 
CULTURAL COLLEGE — MASTER  AND  SERVANT — WORKMEN'S  COMPENSATION. 

Neither  the  legislature  nor  any  officer  or  Board  of  the  State  may 
interfere  with  the  affairs  and  property  of  the  university  or  the 
Michigan  Agricultural  College,  although  in  making  appropria- 
tions for  its  support  the  legislature  may  attach  any  conditions 
that  it  deems  expedient,  and  the  appropriation  cannot  be  re- 
ceived without  complying  with  the  expressed  conditions. 

2.  SAME — MUNICIPAL  CORPORATIONS. 

Not  having  elected  to  be  brought  within  the  provisions  of  the 
workmen's  compensation  law,  Act  No.  10,  Extra  Session  1912 
(2  How.  Stat.  (2d  Ed.)  §  3939  et  seq.),  the  Michigan  Agricultural 
College  is  not  subject  to  its  terms. 

3.  SAME — MASTER  AND  SERVANT. 

A  servant  of  the  college  or  of  the  State  Board  of  Agriculture  is 
not  a  servant  of  the  State,  within  the  meaning  of  the  statute. 


William  M.  Agler  applied  to  the  Industrial  Accident  Board 
for  compensation  for  injuries  received  while  in  the  employ  of 
the  Michigan  Agricultural  College.  An  order  awarding  com- 
pensation is  reviewed  by  the  respondent  on  certiorari.  Submit- 
ted April  24,  1014.  Reversed  July  24,  1014. 


AGLER  vs.  MICHIGAN  AGRICULTURAL  COLLEGE.  103 

Grant  Fellows,  Attorney  General,  and  L.  W.  Carr,  Assist- 
ant Attorney  General,  for  appellant. 
Person,  Shields  &  Silsbee,  for  appellee. 

The  applicant,  who  is  a  tinner  and  roofer  by  trade,  was  in- 
jured, on  April  18,  1913,  by  falling  from  a  ladder  while  mak- 
ing repairs  on  the  buildings  of  the  respondent.  A  claim  was 
presented  against  the  respondent  under  the  workmen's  com- 
pensation law  of  1912,  and  the  case  is  brought  here  by  cer- 
tiorari  to  the  Industrial  Accident  Board  to  review  an  order 
affirming  the  award  miade  to  the  applicant  by  an  arbitration 
committee,  in  accordance  with  the  provisions  of  the  act. 
Neither  the  Michigan  Agricultural  College  nor  the  State 
board  of  agriculture,  which  has  general  supervision  of  the  col- 
lege and  direction  and  control  of  all  its  funds,  elected  to  come 
tinder  the  provisions  of  the  Workmen's  Compensation  Act. 
No  mention  is  made  in  the  act  of  either  of  the  constitutional 
boards;  the  board  of  regents  of  the  University  and  the  State 
board  of  agriculture,  and  the  question  here  it,  Does  the  act 
bring  arbitrarily  under  its  provisions  the  State  board  of  agri- 
culture, which  is  a  board  created  by  the  Constitution  (sec- 
tions 7  and  8,  art.  11,  Const.)  ?  This  involves  a  consideration 
of  the  following  sections  of  the  act: 

"PART  1. 

"SEC.  5.  The  following  shall  constitute  employers  subject  to  the 
provisions  of  this  act: 

"1.  The  State  and  each  county,  city,  township,  incorporated  vil- 
lage and  school  district  therein; 

"2.  Every  person,  firm  and  private  corporation,  including  any  pub- 
lic service  corporation,  who  has  any,person  in  service  under  any  con- 
tract of  hire,  express  or  implied,  oral  or  written,  and  who,  at  or  prior 
to  the  time  of  the  accident  to  the  employee  for  which  compensation 
under  this  act  may  be  claimed,  shall  in  the  manner  provided  in  the 
next  section,  have  elected  to  become  subject  to  the  provisions  of  this 
act,  and  who  shall  not,  prior  to  such  accident,  have  effected  a  with- 
drawal of  such  election,  in  the  manner  provided  in  the  next  section. 
*  *  * 

"SEC.  7.  The  term  'employee'  as  used  in  this  act  shall  be  construed 
to  mean: 


104  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"1.  Every  person  in  the  service  of  the  State,  or  of  any  county,  city, 
township,  incorporated  village  or  school  district  therein,  under  any 
appointment,  or  contract  of  hire,  express  or  implied,  oral  or  written, 
except  any  official  of  the  State,  or  of  any  county,  city,  township,  in- 
corporated village  or  school  district  therein:  Provided,  that  one  em- 
ployed by  a  contractor  who  has  contracted  with  a  county,  city,  town- 
ship, incorporated  village,  school  district  or  the  State,  through  its 
representatives,  shall  not  be  considered  an  employee  of  the  State, 
county,  city,  township,  incorporated  village  or  school  district  which 
made  the  contract; 

"2.  Every  person  in  the  service  of  another  under  any  contract  of 
hire,  express  or  implied,  oral  or  written,  including  aliens,  and  also 
including  minors  who  are  legally  permitted  to  work  under  the  laws 
of  the  State  who,  for  the  purposes  of  this  act,  shall  be  considered  the 
same  and  have  the  same  power  to  contract  as  adult  employees,  but 
not  including  any  person  whose  employment  is  but  casual  or  is  not  in 
the  usual  course  of  the  trade,  business,  profession  or  occupation  of 
his  employer." 

In  the  stipulation  filed  in  this  case  the  following  appears: 

"It  is  agreed  that  the  draft  of  the  workmen's  compensation  act  as 
prepared  by  the  commission  and  as  presented  to  the  legislature  con- 
tained a  period  after  the  word  'contract'  at  the  end  of  the  first  sub- 
division of  paragraph  7  of  part  1." 

KUHN,  J.  (After  stating  the  facts).  By  virtue  of  the  Con- 
stitution of  1909,  the  State  board  of  agriculture  was  put  on 
the  same  plane  with  the  board  of  regents  of  the  University  of 
Michigan.  It  has  been  established  beyond  question  by  deci- 
sions of  this  court  that  neither  the  Legislature  nor  any  officer 
or  board  of  this  State  may  interfere  with  the  control  and  man 
agement  of  the  affairs  and  property  of  the  University,  although 
in  making  appropriations  for  its  support  the  Legislature  may 
attach  any  conditions  it  may  deem  expedient  and  wise,  and 
the  appropriation  cannot  be  received  without  complying  with 
the  conditions.  People,  ex  rel.  Drake,  v.  Regents,  4  Mich.  98; 
Weinberg  v.  Regents,  97  Mich.  246  (56  N.  W.  605;  Sterling  v. 
Regents  110  Mich.  369  (68  N.  W.  253,  34  L.  E.  A.  150)  ;  'Bauer 
v.  State  Board  of  Agriculture,  164  Mich.  415  (129  N.  W.  713)  ; 
Board  of  Regents  v.  Auditor  General,  167  Mich.  444  (132  N. 
W.  1037). 


AGLER  vs.  MICHIGAN  AGRICULTURAL  COLLEGE.  105 

Section  5,  part  1,  of  the  Workmen's  Compensation  Law  (2 
How.  Stat.  [2d  Ed.]  §  3939),  expressly  enumerates  the  State 
and  counties,  cities  and  villages,  townships  and  school  dis- 
tricts. Neither  of  the  constitutional  boards  is  mentioned. 
In  the  case  of  Weiriberg  v.  Regents,  supra,  there  was  under 
consideration  an  act  of  the  Legislature  which  provided : 

"That  when  public  buildings,  or  other  public  works  or  improve- 
ments are  to  be  built,  repaired  or  ornamented  under  contract,  at 
the  expense  of  this  State,  or  of  any  county,  city,  village,  township,  or 
school  district  thereof,  it  shall  be  the  duty  of  the  board  of  officers  or 
agents  contracting  on  behalf  of  the  State,  county,  city,  village,  town- 
ship, or  school  district,  to  require  sufficient  security  by  bond,  for  the 
payment  by  the  contractor,  and  all  subcontractors,  for  all  labor  per- 
formed, or  materials  furnished  in  the  erection,  repairing  or  ornament- 
ing of  such  building,  works  or  improvements."  Act  No.  45,  Pub.  Acts 
1885. 

Mr.  Justice  Grant,  in  writing  the  majority  opinion  said,  97 
Mich.,  at  pages  253,  254  (56  N.  W.  607)  : 

"The  regents  make  no  contracts  on  behalf  of  the  State,  but  solely 
on  behalf  of  and  for  the  benefit  of  the  University.  All  the  other 
public  corporations  mentioned  in  the  Constitution,  which  have  occa- 
sion to  erect  public  buildings  or  to  make  public  improvements,  are 
expressly  included  in  this  statute.  'Expressio  unius  est  exclusio  al- 
terius.'  It  expressly  enumerates  the  State,  counties,  cities,  villages, 
townships,  and  school  districts.  If  the  University  were  under  the 
control  and  management  of  the  legislature,  it  would  undoubtedly  come 
within  this  statute,  as  do  the  Agricultural  College,  Normal  School, 
State  Public  School,  asylums,  prisons,  reform  schools,  houses  of  cor- 
rection, etc.  But  the  general  supervision  of  the  University  is,  by  the 
Constitution,  vested  in  the  regents.  *  *  * 

"The  University  is  the  property  of  the  people  of  the  State,  and  in 
this  sense  is  State  property  so  as  to  be  exempt  from  taxation.  Auditor 
General  v.  Regents,  83  Mich.  467  [4J  N.  W.  440,  10  L.  R.  A.  376].  But 
the  people,  who  are  the  corporators  of  this  institution  of  learning, 
have,  by  their  Constitution,  conferred  the  entire  control  and  manage- 
ment of  its  affairs  and  property  upon  the  corporation  designated  as 
'the  Regents  of  the  University  of  Michigan,'  and  have  thereby  ex- 
cluded all  departments  of  the  State  government  from  any  interference 
therewith.  The  fact  that  it  is  State  property  does  not  bring  the 
regents  within  the  purview  of  the  statute.  The  people  may,  by  their 
Constitution,  place  any  of  its  institutions  or  property  beyond  the 
control  of  the  legislature." 


106  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

The  contract  of  employment  in  the  instant  case  was  made 
with  the  State  board  of  agriculture,  not  on  behalf  of  the  State, 
but  primarily  for  the  benefit  of  the  Agricultural  College.  For 
the  reasons  stated  by  Mr.  Justice  Grant  in  the  Weinberg  Case, 
we  must  conclude  that  it  cannot  be  said  that  the  State  board 
of  agriculture  or  the  regents  of  the  University  are  brought  un- 
der the  Workmen's  Compensation  Act  by  virtue  of  said  sec- 
tion 5  of  part  1  of  the  act,  and  it  cannot  be  said  that  the  ap- 
plicant was  an  employee  of  the  State  within  the  meaning  of 
said  law.  The  conclusion  must  therefore  follow  that  the  res- 
pondent was  not  within  the  list  of  employers  who  come  under 
the  provisions  of  the  law  of  1912  automatically;  and,  inas- 
much as  the  respondent  has  made  no  election  to  come  thereun- 
der, the  applicant  is  not  entitled  to  recover  in  this  proceeding. 

Because  of  this  conclusion,  it  is  unnecessary  to  discuss  the 
other  interesting  and  well-argued  questions  raised  in  briefs  of 
counsel.  The  decision  of  the  Industrial  Accident  Board  is  re- 
versed, and  the  claim  of  the  applicant  is  disallowed. 


HELEN  JENDRUS, 

Applicant, 
vs. 
DETROIT  STEEL  PRODUCTS  COMPANY, 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 

MUTUAL  INSURANCE  COMPANY, 

Respondents. 

REFUSAL  TO  SUBMIT  TO  OPERATION — DELAY  IN  GIVING  CONSENT. 

Respondent's  decedent  suffered  an  injury  while  in  the  employ  of  the 
applicant,  which  necessitated  an  operation.  Decedent  refused  to 
allow  an  operation  until  the  next  day,  although  he  was  told  that 
it  was  necessary.  While  the  operation  was  being  performed  de- 


JEXDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   107 

cedent  vomited  and  some  of  the  vomit  was  drawn  into  his  lungs, 
causing  pneumonia  which  resulted  in  this  death. 

HELD:  The  refusal  to  be  operated  on  when  first  requested  was  not 
so  unreasonable  as  to  defeat  the  claim  for  compensation,  as  de- 
cedent finally  consented  when  convinced  that  the  operation  was 
absolutely  necessary. 


Appeal  of  Detroit  Steel  Products  Company  from  a  decision 
of  an  arbitration  committee,  awarding  compensation  to  Helen 
•Tendnis  for  the  death  of  her  husband.  Affirmed. 


Opinion  by  the  Board: 

In  this  case  the  deceased,  Joseph  Jendrus,  was  injured  by  a 
severe  blow  on  the  abdomen.  The  doctors  attending  the  in- 
jured man  diagnosed  the  injury  as  a  probable  rupture  of  the 
intestine  and  advised  an  operation.  The  accident  occurred 
about  1  o'clock  in  the  afternoon  on  February  14.  At  about  8 
or  8 :30  in  the  evening  the  doctors  sought  to  operate  on  the  in- 
jured man.  It  appears  that  he  could  not  talk  English  and 
communication  was  had  with  him  through  an  interpreter.  The 
injured  man  shook  his  head,  indicating  a  refusal  to  be  operated 
on.  The  matter  of  an  operation  was  again  brought  up  by  the 
doctors  on  the  following  morning,  February  15.  Jendrus,  at 
that  time,  refused  to  submit  to  the  operation,  but  consented  at 
about  11 :30  a.  m.  The  operation  was  performed  about  1 :30 
p.  m.  on  February  15.  It  seems  that  during  the  operation  the 
patient  vomited,  and  vomit  was  drawn  into  the  lungs,  caus- 
ing pneumonia  and  resulting  in  his  death  a  few  days  later. 
The  operation  disclosed  a  rupture  of  the  intestine  which  was 
not  sutured,  and  the  post-mortem  examination  showed  the 
same  to  be  in  process  of  healing  at  the  time  of  death.  All 
communication  with  the  deceased  after  the  injury  was  through 
an  interpreter. 

The  Board  is  of  the  opinion  that  the  refusal  to  be  operated 
on  when  first  requested,  and  the  further  action  of  deceased  in 
delaying  consent  to  the  operation  until  nearly  noon  on  the  day 


108  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

following  the  accident  was  not  so  unreasonable  and  persistent 
as  to  defeat  the  claim  for  compensation  in  this  case.  He  did 
submit  to  the  operation  after  being  convinced  that  it  was  ab- 
solutely necessary.  It  seems  that  nearly  two  hours  elapsed 
from  the  time  he  gave  his  consent  till  the  operation  was  'per- 
formed. It  is  by  no  means  certain  that  an  earlier  operation 
would  have  saved  his  life,  nor  is  it  certain  that  the  operation 
actually  performed  would  have  have  resulted  in  his  recovery 
were  it  not  for  the  fact  that  he  vomited  while  under  the 
anaesthetic  and  inhaled  some  of  the  vomit,  causing  pneumonia. 
It  seems  clear  that  the  operation  was  not  too  late  to  remedy 
the  abdominal  injury  caused  by  the  accident.  The  vomiting 
and  resulting  pneumonia  came  as  an  incident  to  the  operation. 
The  fact  that  the  deceased  was  unable  to  speak  English  and 
was  unaccustomed  to  the  ways  of  this  country  should  be  given 
some  weight. 

The  judgment  and  decision  of  the  Arbitration  Committee  is 
affirmed. 

This  case  was  appealed  to  the  Supreme  Court  and  affirmed, 
the  full  opinion  of  the  Supreme  Court  being  given  below : 


SUPREME  COURT. 

HELEN  JENDRUS, 

Claimant  and  Appellee, 
vs. 
DETROIT  STEEL  PRODUCTS  COMPANY, 

and 

MICHIGAN  WORKMEN'S   COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 

Defendants  and  Appellants. 

MASTER  AND  SERVANT — PERSONAL   INJURIES — WORKMEN'S   COMPENSATION 
ACT — REFUSAL  TO  ALLOW  OPERATION. 

Where  a  servant  of  defendant  received  internal  injuries  which 
resulted  in  peritonitis  and  he  refused  to  permit  an  operation 
which  his  physician  advised,  until  his  condition  hecame  too 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   103 

serious  to  operate  successfully,  but  it  was  not  established  con- 
clusively that  an  operation  would  have  effected  a  cure  or  that 
the  peritonitis  caused  his  death,  and  where  it  was  shown  that 
decedent  probably  died  of  pneumonia  contracted  as  a  result  of 
the  operation  when  he  finally  submitted  to  it,  15  or  16  hours 
later,  the  court  could  not  determine,  as  matter  of  law,  that  his 
conduct  was  so  unreasonable  as  to  forfeit  the  right  to  com- 
pensation under  Act  No.  10,  First  Special  Session  1912  (2  How. 
Stat.  [2d.  Ed.]  §3939),  especially  in  view  of  the  fact  that  he 
was  unable  to  speak  or  understand  English  well,  and  was  suffer- 
ing at  the  time  the  operation  was  proposed. 


Certiorari  to  the  Industrial  Accident  Board.  Submitted 
October  16,  1913.  Decided  December  20,  1913. 

Helen  Jendrus  presented  her  claim  to  the  Industrial  Acci- 
dent Board  for  compensation  for  the  accidental  death  of  her 
husband  while  he  was  employed  by  the  Detroit  Steel  Products 
Company.  From  the  allowance  of  the  claim,  defendants  bring 
certiorari.  Affirmed. 

Beaumont,  Smith  &  Harris,  for  appellants. 
William  W.  MacPherson,  for  appellee. 

STONE,  J.  The  claimant  and  appellee  is  the  widow  of 
Joseph  Jendrus,  who  died  on  February  19,  1913.  Joseph  Jen- 
drus, a  native  of  Poland,  was  on  February  14,  1913,  an  em- 
ployee of  the  appellant  Detroit  Steel  Products  Company, 
which  was  then  insured  under  the  Workmen's  Compensation 
Act  by  the  appellant  Michigan  Workmen's  Compensation  Mu- 
tual Insurance  Company.  Joseph  Jendrus  was  at  the  date 
last  named  also  subject  to  the  Compensation  Act.  On  Fri- 
day, February  14,  1913,  at  about  2  o'clock  in  the  afternoon, 
Jendrus,  while  in  good  health  and  vigor,  was  at  work  for  his 
said  employer  polishing  a  spring  scroll,  when  the  end  of  the 
scroll  caught  on  a  belt  of  a  machine,  and  swung  around  and 
struck  him  violently  in  the  abdomen.  Jendrus  was  imme- 
diately placed  on  a  stretcher  and  sent  to  Harper  Hospital. 
The  insurance  company  was  notified,  and  its  surgeon,  Dr.  W. 
H.  Hutchings,  reached  the  hospital  before  the  ambulance  ar- 


110  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

rived.  He  looked  at  Jendurs  before  he  was  taken  into  the  hos- 
pital. Before  Jendrus  was  taken  into  the  ward,  samples  of 
his  urine  and  his  blood  wrere  taken,  and  he  was  then  put  to 
bed.  As  soon  as  this  was  done,  the  surgeon  examined  him, 
and  found  "a  tenderness,  very  slight,  almost  no  sign  of  contu- 
sion on  the  outside,  just  a  little  redness."  This  was  on  the 
right  side  between  the  ribs  and  the  hip.  This  was  at  2  p.  m. 
A  delay  was  necessary  for  the  blood  examination.  At  4  o'clock 
Dr.  Hutchings  saw  Jendrus  again.  He  then  complained  of 
much  pain,  and  there  was  marked  muscular  rigidity  over  the 
area  where  the  blow  appeared  to  have  struck.  At  8  o'clock  p. 
ni.  another  examination  was  made.  The  area  of  hardness  was 
then  spreading.  The  blood  examination  had  shown  no  in- 
ternal hemorrhage,  the  urine  no  blood,  and  the  surgeon,  with 
this  information  diagnosed  the  case  as  that  of  a  ruptured  in- 
testine. At  this  hour  Jendrus'  temperature  was  rising.  The 
surgeon,  to  confirm  his  diagnosis,  asked  Drs.  George  McKeaii 
and  Angus  McLean  to  see  the  injured  man.  They  each  ex- 
amined him  at  about  8  o'clock,  and  confirmed  Dr.  Hutchings' 
opinion,  and  they  joined  him  in  saying  that  an  immediate 
operation  was  necessary.  At  this  time  the  claimant  and  an 
elderly  man  were  at  the  bedside  of  the  patient.  Jendrus  spoke 
very  little  English  and  Dr.  Hutchings  could  not  speak  Polish. 
He  and  the  man  spoke  German,  and  the  doctor  explained  to 
him  the  necessity  for  an  operation.  Upon  this  subject  Dr. 
Hutchings  testified  before  the  committee  of  arbitration  as 
follows : 

"I  told  him  that  if  my  diagnosis  was  correct,  that  without  an  opera- 
tion he  was,  in  my  opinion,  sure  to  die;  that  if  he  was  operated  on 
at  that  time,  he  had  about  nine  chances  out  of  ten  of  getting  well.  I 
thoroughly  explained  that  the  longer  he  delayed  the  operation,  the 
so  much  worse  it  was  for  his  chances;  that  if  he  delayed  long  enough, 
there  would  be  no  use  of  operating.  Dr.  McLean  and  Dr.  McKean 
said  the  same  thing.  I  was  not  satisfied  from  the  attitude  of  the  man 
I  talked  with  that  he  had  told  him  what  I  said.  I  was  not  sure  that 
he  did.  So  I  sent  down  and  got  one  of  the  maids  there  who  spoke 
English  very  well,  and  who  is  Polish  also,  called  her  in  and  said  to 
her,  'I  want  you  to  tell  this  man  what  I  say  to  you.'  This  was  around 
8  o'clock.  'You  tell  him  that,  if  our  diagnosis  is  correct,  that  if  he 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   Ill 

is  not  operated  on,  he  will  surely  die.'  I  said,  'If  you  are  operated 
on  now,  as  soon  as  we  can,  your  chances  of  getting  well  are  about 
nine  out  of  ten;  the  longer  you  delay  this,  so  much  you  take  away 
from  your  chances  of  recovery;  if  you  delay  it  until  you  are  pretty 
near  dead,  probably  an  operation  will  do  you  no  good.'  This  Polish 
girl  explained  this  to  the  man,  and  he  said,  'No.'  I  could  see  him 
shake  his  head.  It  was  apparent  from  his  general  attitude  that  he 
would  not  have  it,  so  I  went  away.  *  *  *  I  went  away  leaving  in- 
structions, if  they  changed  their  minds,  they  were  to  call  me." 

While  the  doctors  were  there  in  consultation,  the  patient 
vomited  a  little  fluid.  Dr.  McLean  testified :  . 

"It  was  fecal  in  odor,  but  was  not  of  a  poisonous  nature. ' 

Dr.  McKean  testified: 

"It  was  almost  a  fecal  vomit,  due  to  reverse  acting  of  the  peritalsis. 
It  was  just  the  beginning  of  peritonitis.  *  *  *  It  was  approaching 
the  fecal  vomiting  time." 

The  patient  was  kept  quiet  during  the  night.  The  next 
morning  when  Dr.  Hutchings  again  saw  him  he  was  worse. 
The  doctor  testified : 

"His  pulse  was  rapid,  the  whole  abdomen  was  distended  and  tender, 
and  the  typical  signs  of  advanced  peritonitis;  that  is,  he  was  vomiting 
considerable  quantities  of  fecal  matter,  which  by  that  time  had  become 
markedly  fecal." 

The  patient  would  not  consent  in  the  morning  to  an  opera- 
tion. Dr.  Hutchings  went  to  attend  to  some  other  operations. 
Between  11 :30.a.  m.  and  12  o'clock  another  physician  had  been 
called  by  the  Jendrus  family,  and  he  testified  that  when  he 
arrived  Jendrtis  had  consented  to  be  operated  upon.  Dr. 
Hutchings  testified  that  it  was  about  12 :30  p.  m.  when  he  was 
told  by  the  nurse  that  Jendrus  had  consented  to  an  operation. 
A  room  was  ordered  prepared,  and  the  patient  was  operated 
upon  at  1 :30  p.  m.  This  was  as  soon  as  the  arrangements 
could  be  made.  The  house  staff  was  present  and  assisted. 
There  was  testimony  that  the  vomiting  had  grown  worse,  and 
it  had  been  persistent  all  the  morning,  and  the  distended  con- 


112 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


dition  of  the  abdomen  had  developed  about  9  o'clock.  Becaus 
of  the  vomiting  Dr.  Hutchings  directed  the  assistants  to  us< 
nitrous  oxide  as  the  anaesthetic  as  being  less  likely  to  prodm 
vomiting.  Just  as  the  patient  was  going  under  the  influence 
of  the  anaesthetic  a  large  quantity  of  fecal  vomitus  came 
and  some  of  it  went  down  in  his  lungs.  They  turned  his  hea< 
over  in  the  endeavor  to  rid  him  of  this.  The  surgeon  testifiec 
that  there  was  no  way  that  this  vomitus  getting  into  the  lunj 
could  be  avoided.  Dr.  Hutchings  proceeded  with  the  open 
tion,  which  took  about  ten  minutes.  He  made  the  ordinary 
incision  and  found  a  complete  peritonitis.  The  intestin< 
were  so  congested  that  he  did  not  attempt  to  remove  them  an< 
find  the  perforation.  He  inserted  drainage  in  the  abdomen, 
and  began  transfusing  a  salt  solution  subcutaneously.  Fol 
lowing  the  operation  Jendrus'  condition  improved.  His  tei 
perature  went  down ;  the  vomiting  became  less,  but  his  breath- 
ing remained  rapid.  There  was  trouble  about  washing  out  hi* 
stomach.  He  had  refused  to  have  this  done,  but  finally  coi 
sen  ted. 

Two  days  after  the  operation  pneumonia  developed,  an< 
Dr.  Ernest  Haass  was  called.  He  found  the  patient  suffering 
from  aspiration,  or  "swallow"  pneumonia.  This  was  on  Mon- 
day. The  next  two  days  the  lungs  solidified,  and  the  patient 
died  of  pneumonia,  in  the  opinion  of  most  of  the  physicians. 
Dr.  McLean,  however,  testified  that,  while  he  saw  him  but  a 
few  times,  he  did  not  think  he  died  of  pneumonia;  he  thought 
it  was  the  peritonitis  that  was  the  cause  of  his  death,  but 
testified  that  he  did  not  see  the  patient  after  he  had  pneumo 
nia.  After  Jendrus'  death  a  post  mortem  was  performed  by 
Dr.  Sill,  and  it  confirmed  the  diagnosis  of  the  surgeon.  The 
lungs  were  found  to  be  solidified,  and  Dr.  Pill  testified,  among 
other  things,  as  follows: 

"I  think  that  the  pneumonia  process  discovered  was  as  potent  a 
factor  in  causing  the  death  as  the  peritonitis.  I  would  call  that  what 
we  term  the  immediate  cause  of  death. 

"Q.  Was  there  any  way  for  you  to  determine  whether  or  not  the 
pneumonia  was  caused  by  inspiration  of  material,  of  vomitus?" 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   lia 

"A.  Simply  that  it  was  a  disseminated  bronchial  pneumonia.  *  *  * 
The  pneumonia  process  was  still  active.  I  mean  that  the  inflamma- 
tion was  going  on.  I  think  the  man  died  from  toxaemia.  I  hold  from 
my  post  mortem  findings  that  the  pneumonia  process  was  the  most 
active  toxic  process  going  on  at  the  time  of  his  death.  I  form  that 
opinion  from  the  fact  that  the  peritonitis  was  beginning  to  localize, 
beginning  to  subside.  I  do  not  think  I  could  say  that  the  pneumonia 
was  sufficient  to  have  caused  death  without  the  complicated  inflamma- 
tion of  the  peritonitis.  The  peritonitis  and  the  pneumonia  together 
were  sufficient  to  cause  death;  but  whether  the  pneumonia  alone  would 
have  caused  death  I  could  not  answer.  *  *  *  I  think  the  pneumonia 
was  the  immediate  cause  of  death.  If  he  had  not  had  pneumonia,  he 
would  not  have  died  when  he  did  die,  and  he  might  have  recovered 
from  his  peritonitis. 

"Q.  Nothing  certain  about  that,  about  him  recovering  from  the 
peritonitis? 

"A.     I  could  not  swear  that  he  would  recover;   no. 

"Q.  Are  you  able  to  tell  from  your  post  mortem  findings,  or  are 
you  able  to  state,  which  was  the  greatest  factor  in  his  death  produc- 
tion, eliminating  the  fact  that  his  pneumonia  came,  as  stated  by  Dr. 
Hutchings,  from  the  inspiration  of  material  vomited? 

"A.  No;  I  don't  think  I  can  state  that.  I  don't  think  I  can  state 
which  was  the  greatest  factor  in  his  death,  eliminating  the  fact  that 
his  pneumonia  came  from  inspiration  of  material  vomited." 

The  perforation  of  the  intestine  was  located  at  the  post 
morfem.  On  separating  the  coils  of  the  intestines  a  perfora- 
tion the  size  of  a  Canadian  five-cent  piece  was  found  in  the 
ileum  21/2  feet  from  the  caput  coli.  None  of  the  physicians 
testified  that  Jendrns  would  surely  have  recovered  from  the 
operation  if  it  had  been  performed  Friday  night;  but  there 
was  testimony  that  an  early  operation  presented  the  only 
chance  for  saving  his  life. 

After  the  death  of  Jendrus  the  claimant  here  made  claim 
for  compensation.  A  committee  of  arbitration  was  appointed, 
testimony  taken,  and  the  award  was  in  favor  of  the  claimant 
for  the  sum  of  $10  per  week  for  a  period  of  300  weeks  from  the 
14th  day  of  February,  1913. 

Thereafter  a  review  of  this  award  was  bad,  and  the  Indus- 
trial Accident  Board  affirmed  it,  filing  an  opinion  and  find- 
ings of  facts,  as  follows : 
15 


114 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


"In  this  case  the  deceased,  Joseph  Jendrus,  was  injured  by  a  severe 
blow  on  the  abdomen.  The  doctors  attending  the  injured  man  diag- 
nosed the  injury  as  a  probable  rupture  of  the  intestine,  and  advised 
an  operation.  The  accident  occurred  about  1  o'clock  in  the  afternoon 
on  February  14th.  At  about  8  or  8:30  in  the  evening  the  doctors 
sought  to  operate  on  the  injured  man.  It  appears  that  he  could  not 
talk  English,  and  communication  was  had  with  him  through  an 
interpreter.  The  injured  man  shook  his  head,  indicating  a  refusal 
to  be  operated  on.  The  matter  of  an  operation  was  again  brought  up 
by  the  doctors  on  the  following  morning,  February  15th.  Jendrus,  at 
that  time,  refused  to  submit  to  the  operation,  but  consented  at  about 
11:30  a.  m.  The  operation  was  performed  about  1:30  p.  m.  on  Feb- 
ruary 15th.  It  seems  that  during  the  operation  the  patient  vomited, 
and  the  vomit  was  drawn  into  the  lungs,  causing  pneumonia,  and 
resulting  in  his  death  a  few  days  later.  The  operation  disclosed  a 
rupture  of  the  intestines  which  was  not  sutured,  and  the  post  mortem 
examination  showed  the  same  to  be  in  process  of  healing  at  the  time 
of  death.  All  communication  with  the  deceased  after  the  injury  was 
through  an  interpreter.  The  board  is  of  the  opinion  that  the  refusal 
to  be  operated  on'  when  first  requested  and  the  further  action  of  de- 
ceased in  delaying  consent  to  the  operation  until  nearly  noon  on  the 
day  following  the  accident  was  not  so  unreasonable  and  persistent  as 
to  defeat  the  claim  for  compensation  in  this  case.  He  did  submit  to 
the  operation  after  being  convinced  that  it  was  absolutely  necessary. 
It  seems  that  nearly  two  hours  elapsed  from  the  time  he  gave  this 
consent  until  the  operation  was  performed.  It  is  by  no  means  certain 
that  an  earlier  operation  would  have  saved  his  life,  nor  is  it  certain 
that  the  operation  actually  performed  would  not  have  resulted  in 
his  recovery  were  it  not  for  the  fact  that  he  vomited  while  under  the 
anaesthetic,  and  inhaled  some  of  the  vomit,  causing  pneumonia.  It 
seems  clear  that  the  operation  was  not  too  late  to  remedy  the  ab- 
dominal injury  caused  by  the  accident.  The  vomiting  and  resulting 
pneumonia  came  as  an  incident  to  the  operation.  The  fact  that  the 
deceased  was  unable  to  speak  English  and  was  unaccustomed  to  the 
ways  of  this  country  should  be  given  some  weight.  The  judgment 
and  decision  of  the  arbitration  committee  is  affirmed." 


There  was  a  motion  to  amend  the  findings,  which  was  re- 
fused except  in  one  instance,  to  which  action  there  was  no  ex- 
ception or  error  assigned,  and  the  matter  of  refusal  to  amend 
is  not  before  us. 

The  case  is  here  upon  certiorari  to  review  the  action  of  the 
Industrial  Accident  Board. 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   115 

The  following  grounds  of  error  are  assigned  by  appellants 
in  the  affidavit  for  the  writ  of  certiorari : 

(a)  "The    industrial   accident   board   erred    in    affirming   the    said 
judgment   and    decision   of   the   said    arbitration   committee." 

(b)  "The    industrial    accident    board    erred    in    deciding    that    the 
refusal  of  said  Joseph  Jendrus  to  be  operated  on  when  first  requested 
and  further  action  of  the  deceased  in  delaying  consent  to  the  opera- 
tion was  not  so  unreasonable  and  persistent  as  to  defeat  the  claim 
for  compensation." 

(c)  "The  said  industrial  accident  board  erred  in  holding  that  the 
refusal  of  the  said  Joseph  Jendrus  to  be  operated  on  was  not  so  un- 
reasonable as  to  defeat  the  claim  for  compensation." 

(d)  "Said  industrial  accident  board  erred  in  deciding  that  the  re- 
fusal of  the  said  Joseph  Jendrus  was  not  so  persistent  as  to  defeat 
the  claim  for  compensation  in  that  the  refusal  to  submit  to  an  opera- 
tion if  unreasonable   need  not  be  persistent  to  defeat  the  claim  for 
compensation." 

(e)  "Said  industrial  accident  board   likewise   erred   in   their   con- 
clusion of  law  that  the  said  refusal  was  not  so  persistent  as  to  de- 
feat the  claim  for  compensation  in  that,  as  a  matter  of  law,  the  said 
refusal  need  not  be  persistent  to  defeat  said  claim." 

(f )  "Said    industrial    accident   board    erred    in    its    conclusion    of 
law  that  the  said  refusal  was  not  unreasonable." 

(g)  "That  said  industrial  accident  board  erred  in  their  decision,  be- 
cause it  appears  from  the  testimony  that  the  said  Joseph  Jendrus  did 
not  come  to  his  death  as  a  result  of  the  said  injury  for  which  compensa- 
tion was  claimed,  but  he  came  to  his  death  by  reason  of  his  refusal 
to    permit    the    medical    attention    offered    him   by   said    respondents, 
Michigan   Workmen's   Compensatipn   Mutual   Insurance  Company   and 
the  Detroit  Steel  Products  Company." 

(h)  "The  said  industrial  accident  board  erred  in  holding,  as  a  mat- 
ter of  law,  that  the  death  of  the  said  deceased  was  not  a  result  of  his 
intentional  and  wilful  misconduct." 

(i)  "The  industrial  accident  board  erred  in  holding,  as  a  matter 
of  law,  that  the  claimant  was  entitled  to  compensation  as  widow  of 
the  said  Joseph  Jendrus;  he  having  refused  to  consent  to  the  medical 
attendance  offered  by  the  said  employer,  the  Detroit  Steel  Products 
Company  and  the  Michigan  Workmen's  Compensation  Mutual  Insur- 
ance Company,  petitioners  herein." 

Section  12  of  part  3  of  the  act  (Act  No.  10,  Pub.  Acts  11)12) 
provides  that  the  finding  of  fact  made  by  the  said  Industrial 
Accident  Board,  acting  within  its  powers,  shall,  in  the  absence 
of  fraud,  be  conclusive,  but  the  Supreme  Court  shall  have 


116  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

power  to  review  questions  of  law  involved  in  any  final  deter- 
mination of  said  Industrial  Accident  Board.  No  question  it 
raised  in  this  case  involving  the  validity  or  constitutionality 
of  the  act  in  question.  No  claim  of  fraud  is  here  presented. 

The  appellants  state  in  their  brief  that  the  questions  in- 
volved are: 

(1)  Did  the  injury  arise  out  of  and  in  the  course  of  the 
employment  ? 

(2)  Was  the  employee  guilty  of  intentional  misconduct? 

It  is  said  that  these  questions  are  closely  related,  since  i 
is  clear  that,  if  the  employee  had  been  guilty  of  intentional 
and  wilful   misconduct,    he   could   not   be    acting  within  th< 
course  of  his  employment.     We  quote  from  appellants'  bri( 
as  follows: 

"Manifestly,  the  original  injury — the  striking  of  the  spring  against 
the  abdomen  of  Jendrus — arose  in  the  course  of  the  employment,  and 
arose  out  of  the  employment,  and  there  is  no  showing  that  it  was 
caused  by  the  wilful  misconduct  of  Jendrus.  But  the  claim  here 
for  compensation  by  reason  of  the  death  of  Jendrus.  The  question 
then  is,  did  the  death  occur  from  that  injury,  or  was  it  caused  by  some 
other  accident,  act,  or  injury?  *  *  *  Here  Jendrus  had  entered  into 
an  agreement  by  which  he  had  undertaken  to  accept  from  his  em- 
ployer reasonable  medical  treatment  and  hospital  services.  The  em- 
ployer had  undertaken  that  for  a  limited  period  of  time  it  would 
furnish  this  service.  That  agreement  was  offered  to  the  employee 
as  a  part  consideration  for  his  yielding  up  his  right  of  action  at 
common  law.  But  it  rests  as  well  upon  another  theory,  which  is  that 
the  employer,  by  reason  of  the  fact  that  it  undertook  to  pay  the  in- 
jured employee  a  percentage  of  his  earnings  during  the  period  of  his 
disability,  should  have  the  right,  as  it  was  its  duty,  to  furnish  the 
medical  attendance  to  that  employee  in  order  to  minimize  the  injury 
and  the  consequent  compensation." 

"When,  therefore,  Jendrus  refused  the  medical  attendance  offered 
by  his  employer,  he  refused  that  which  the  employer  had  undertaken 
to  give  him,  and  he  refused  a  service  that  it  was  important  for  the 
employer  to  render  by  reason  of  the  relation  which  it  bore  to  the  com- 
pensation that  the  employer  must  pay  for  disability  or  death.  *  * 
The  workmen's  compensation  statute  specifically  provides  that  the 
injury  must  arise  out  of  the  employment,  and  specifically  negatives  a 
recovery  where  there  is  intentional  and  wilful  misconduct.  It  is  true 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   117 

that  the  statute  disregards  negligence;  but  there  still  must  remain, 
before  there  can  be  a  recovery,  a  showing  that  the  injury  did  result 
from  an  accident  arising  out  of  the  employment,  and  not  from  any 
other  cause." 

"It  would  be  a  harsh  rule  that  bound  an  employee  who  had  been 
injured  to  accept  in  all  cases  the  dictum  of  a  surgeon  who  advises  an 
operation.  Manifestly  the  employee  cannot  be  called  upon  at  all 
times  and  under  all  circumstances  to  place  himself  absolutely  in  the 
hands  of  the  employer's  surgeon;  but,  where  there  is  no  dispute 
amongst  his  medical  advisers,  and  the  course  suggested  presents  the 
only  opportunity  for  the  saving  of  the  life,  we  insist  that  that  refusal 
is  a  new  and  controlling  cause  for  the  injury  for  which  recovery  is 
sought." 

Counsel  for  appellants  call  attention  to  the  English  act 
which  provides,  as  ours  does,  for  the  payment  for  injuries 
arising  out  of  and  in  the  course  of  the  employment,  but  that 
that  act  does  not  provide  for  medical  care  by  the  employer; 
and  it  is  urged  that  in  Michigan,  if  the  employee  refuses  the 
reasonable  medical  services  tendered  by  the  employer,  he  is 
refusing  compensation,  and  should  not  be  permitted  to  compel 
the  employer  to  pay  the  money  compensation,  while,  at  the 
same  time,  he  is  refusing  to  accept  the  medical  compensation. 
Tl  is  urged  that  under  the  English  decisions  the  rule  has  been 
universally  laid  down  that,  if  the  employee  unreasonably  re- 
fuses to  accept  the  medical  attention  offered  by  the  employer, 
li<>  forfeits-  his  compensation.  And  our  attention  has  been 
called  to  the  following  English  cases:  Donnelly  v.  Baird  <&  Co., 
Lt<l.  (Court  of  Sessions,  Scotland,  1908),  reported  in  45 
Scottish  Law  Eeporter,  -°>94 ;  1  Butterworths'  Workmen's  Com- 
pensation Cases,  95. 

In  that  case  a  workman  in  the  course  of  his  employment 
had  suffered  injury  to  his  left  hand,  in  respect  of  which  he  was 
receiving  compensation.  On  application  by  the  employers  to 
stop  the  payment  of  compensation  on  the  ground  that  the  con- 
tinued incapacity  for  work  resulted  from  the  workman  refus- 
ing to  undergo  surgical  treatment,  the  sheriff's  substitute 
found  that  the  operations  suggested  by  the  doctors  were  sim- 
ple or  minor  operations,  not  attended  with  appreciable  risk  or 
serious  pain,  likely,  if  submitted  to,  to  restore  the  workman's 


118 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


capacity  for  work,  and  that  the  workman  was  of  good  consti- 
tution and  sound  general  health;  he  thereupon  ended  the  pay- 
ment of  compensation.  The  court  of  sessions,  two  justices  dis- 
senting, held  that  upon  the  findings  of  the  sheriff's  substitute 
his  decision  was  right. 

In  the  course  of  his  opinion,  Lord  Justice-Clerk  said : 

"The  question  whether  a  refusal  to  submit  to  skilled  treatment 
the  restoration,  whole  or  partial,  of  capacity  for  work  is  an  unreason- 
able refusal,  is  necessarily  a  question  of  degree.  For  it  cannot  be 
maintained  that  no  matter  what  be  the  severity  of  the  operation 
recommended,  or  how  great  soever  the  risk  to  life  or  general  health 
of  the  treatment,  the  workman  loses  right  to  compensation  unless 
he  brings  himself  to  undergo  the  treatment  and  to  take  the  risk.  I 
think  the  sound  view  on  this  matter  is  well  expressed  by  Lord  Adam 
in  the  case  of  Dowds  v.  Bennie  &  Son  (40  S.  L.  R.  239),  when  he  laid 
it  down  that  a  workman  who  has  been  incapacitated  is  not  bound  in 
every  case  to  submit  to  any  medical  or  surgical  treatment  that  is  pro- 
posed, under  the  penalty,  if  he  refuses,  or  forfeiture  of  his  right  to 
a  weekly  payment — e.  g.,  in  the  case  where  a  serious  surgical  opera- 
tion is  proposed  with  more  or  less  probability  of  a  successful  cure. 

"On  the  other  hand,  I  hold  it  to  be  the  duty  of  the  injured  workman 
to  submit  to  such  treatment,  medical  or  surgical,  as  involves  no 
serious  risk  or  suffering,  such  an  operation  as  a  man  of  ordinarily 
manly  character  would  undergo  for  his  own  good,  in  a  case  where 
no  question  of  compensation  due  by  another  existed.  In  preparing 
this  opinion  I  find  mat  I  have  used  almost  the  terms  which  are  to 
be  found  in  the  case  of  Anderson  v.  Baird  &  Co.,  Ltd.  (40  S.  L.  R. 
263).  These  two  cases  which  I  have  referred  to  seem  to  me  to  prac- 
tically rule  this  case." 


Lord  McLaren  said: 

"There 'is  of  course  no  question  of  compelling  the  party  to  submi 
to  an  operation.     The  question   is  whether  a  party   who  declines  to 
undergo  what  would  be  described  by  experts  as  a  reasonable  and  safe 
operation  is  to  be  considered  as  a  sufferer  from  the  effect  of  an  injury 
received  in     the  course  of  his  employment,  or  whether  his  suffering 
and    consequent    inability    to    work    at    his    trade    ought    not .  to    be 
attributed  to  his   voluntary  action   in   declining  to   avail   himself  of 
reasonable  surgical  treatment. 

"In  order  to  test  the  principle  of  decision  I  will  suppose  a  more 
simple  case.  A  workman  whose  trade  requires  the  perfect  use  of  both 
hands — a  watchmaker  or  an  instrument-maker  for  example — has  th< 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   119 

misfortune  to  break  one  of  the  bones  of  a  finger,  and  from  want  of 
immediate  assistance,  or  it  may  be  from  neglect,  the  bone  does  not 
unite  in  the  proper  way.  The  hand  is  disabled,  but  he  is  advised  that 
by  breaking  the  bone  at  the  old  fracture  and  resetting  it  the  use  of 
his  hand  will  be  completely  restored.  I  am  supposing  a  case  where 
the  operation  is  not  attended  with  risk  to  health  or  unusual  suffering, 
and  where  the  recovery  of  the  use  of  the  hand  is  reasonably  clear. 
If  in  such  a  case  the  sufferer,  either  from  defect  of  moral  courage,  or 
because  he  is  content  with  a  disabled  hand  and  is  willing  to  live  on 
the  pittance  which  he  is  receiving  under  the  compensation  act,  refuses 
to  be  operated  on,  I  should  have  no  diffculty  in  holding  that  his  con- 
tinued inability  to  work  at  his  trade  was  the  result  of  the  refusal  of 
remedial  treatment,  and  that  he  was  not  entitled  to  further  com- 
pensation. 

"Passing  to  the  other  extreme,  it  is  easy  to  figure  a  case  of  internal 
injury  where  an  operation  if  successful  would  restore  the  sufferer  to 
health,  but  where  the  surgeon  was  bound  to  admit  that  the  operation 
was  attended  with  danger.  In  such  a  case  it  would  be  generally  ad- 
mitted that  there  was  not  only  a  legal  but  a  moral  right  of  election  on 
the  part  of  the  injured  person;  and  if  he  preferred  to  remain  in  his 
disabled  condition  rather  than  incur  the  risk  of  more  serious  disable- 
ment or  death,  it  could  not  be  said  that  his  inaction  disentitled  him  to 
further  compensation. 

"In  view  of  the  great  diversity  of  cases  raising  this  question,  I 
can  see  no  general  principle  except  this,  that  if  the  operation  is  not 
attended  with  danger  to  life  or  health,  or  extraordinary  suffering,  and  if 
according  to  the  best  medical  or  surgical  opinion  the  operation  offers  a 
reasonable  prospect  of  restoration  or  relief  from  the  incapacity  from 
which  the  workman  is  suffering,  then  he  must  either  submit  to  the 
operation  or  release  his  employers  from  the  obligation  to  maintain 
him.  In  other  words,  the  statutory  obligation  of  the  employer  to 
give  maintenance  during  the  period  of  incapacity  resulting  from  an 
accident,  is  subject  to  the  implied  condition  that  the  workman  shall 
avail  himself  of  such  reasonable  remedial  measures  as  are  within 
his  power." 

Our  attention  is  also  directed  to  the  case  of  Warncken  v. 
Moreland  &  Son,  Ltd.  (Court  of  Appeal,  England,  1908),  100 
Law  Times,  12,  2  B.  W.  C.  C.  350.  There  it  was  held  that, 
where  a  workman  was  injured  by  an  accident  in  respect  of 
which  he  was  otherwise  entitled  to  receive  compensation,  and 
refused  to  submit  to  a  surgical  operation  of  a  single  charac- 
ter involving  no  serious  risk  of  life  or  health,  and  which,  ac- 
cording to  the  unanimous  professional  evidence,  offered  a  rea- 


120 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


sonable  prospect  of  the  removal  of  the  incapacity  from  whicl 
he  suffered,  that  under  those  circumstances  he  had  debarret 
himself  from  any  right  to  claim  further  compensation  undei 
the  act  for  his  continued  disability,  as  such  continuance  was 
not  attributable  to  the  original  accident,  but  to  his  unreason- 
able refusal  to  avail  himself  of  surgical  treatment.  In  thai 
case  the  claimant  had  injured  his  foot  and  had  had  two  to( 
remjoved.  He  still  suffered  pain,  and  the  X-rays  showed  thai 
a  piece  of  bone  was  loose  in  the  big  toe.  The  doctors  advis< 
an  operation ;  but  the  man  refused.  Moulton,  L.  J.,  said : 

"To  hold  the  contrary  would  lead  to  this  result,  that  a  workmai 
who  had  an  injury,  however  small,  might  refuse  to  allow  it  to 
dressed  and  let  a  trivial  burn,  say,  become  a  sloughing  sore,  and  leac 
to  partial  or  total  incapacity.  *  *  *  The  distinction  is  between  bein^ 
reasonable  and  not  being  reasonable." 

This  case  was  followed  by  the  case  of  Tutton  v.  Owners  oj 
Steamship  Majestic  (Court  of  Appeal,  1909),  100  L.  T.  044, 
B.  W.  C.  O.  346.  It  was  there  held  that  a  workman  injun 
by  an  accident  arising  out  of  and  in  the  course  of  his  employ 
ment  within  the  meaning  of  the  act,  who  refuses,  on  the  ad- 
vice of  his  own  doctor,  to  submit  to  the  surgical  operation 
which,  in  the  opinion  of  such  medical  man,  involved  some  risk 
to  his  life,  is  not  acting  unreasonably  in  such  refusal,  and  is 
not  thereby  precluded  from  claiming  compensation  from  his 
employer  under  the  act  in  respect  to  his  continued  disability 
to  work.  There  the  court  said: 

"The  test  is  not  really  whether  on  the  balance  of  medical  opinioi 
the  operation  is  one  which  might  reasonably  be  performed.  The  test 
is  whether  the  workman  in  refusing  to  undergo  the  surgical  operatioi 
acted  unreasonably.  I  altogether  decline  to  say  that,  in  a  case  of 
operation  of  this  kind,  a  workman  can  be  said  to  act  unreasonably  ii 
following  the  advice  of  an  unimpeached  and  competent  doctor,  ever 
though  on  the  balance  of  medical  evidence  given  at  a  subsequent 
date  the  learned  county  court  judge  might  hold  that  the  operatioi 
was  in  its  nature  one  which  might  reasonably  and  properly 
performed." 

Here  the  applicant  was  a  sailor  on  board  the  steamship  M; 


JENDRUS  vs.  DETROIT  STEEL  PRODUCTS  COMPANY.   121 

jestic,  and  met  with  an  accident  which  resulted  in  double  rup- 
ture. He  went  to  the  hospital  at  Southampton,  where  the 
doctor  advised  an  operation.  The  applicant  then  consulted 
another  surgeon,  who  advised  him  not  to  undergo  an  opera- 
tion, as  he  was  suffering  from  Bright's  disease  of  the  kidneys, 
which  would,  in  his  opinion,  render  it  dangerous  for  him  to 
have  an  anaesthetic  administered;  the  physician  saying  that 
it  would  be  barbarous  for  him  to  undergo  an  operation  with- 
out an  anaesthetic.  With  kidney  disease  an  anaesthetic  would 
be  a  risk  to  his  life. 

The  appellee  has  called  our  attention  to  the  case  of  Mar- 
shall v.  Navigation  Co.  (1910),  1  K.  B.  Div.  79,  to  the  effect 
that,  where  the  injured  party  refuses  to  undergo  a  surgical 
operation,  the  employer  has  the  burden  of  showing  that  the 
operation  would  have  accomplished  its  purpose. 

Attention  is  also  called  by  appellee  to  the  case  of  Proprietors 
of  Hays'  Wharf,  Ltd.,  v.  Brown,  3  B.  W.  C.  C.  84,  to  the  effect 
that  the  burden  is  upon  the  employer  to  show  that  the  refusal 
of  the  workman  was  unreasonable. 

In  none  of  the  cases  cited  by  appellants'  counsel  was  the 
operation  anything  more  than  a*  minor  operation  for  a  trifling 
injury.  We  think  the  cases  clearly  distinguishable  from  the 
instant  case,  which  involved  a  major  operation  of  a  serious 
nature.  None  of  the  testimony  in  the  case  goes  to  the  length 
of  showing  that  Jendrus'  life  would  have  been  saved  had 
the  operation  been  submitted  to  at  8  o'clock  on  the  evening  of 
February  14th,  which  was  the  first  time  that  Dr.  Hutchings 
had  reached  the  conclusion  that  an  operation  was  necessary. 
Peritonitis  had  already  set  in,  and  the  vomiting  had  com- 
menced, and  vomitus  of  a  fecal  nature  was  then  being  expelled. 
That  it  was  the  injury  which  caused  the  peritonitis  is  not 
questioned;  that  it  was  the  peritonitis  which  caused  the  vom- 
iting of  fecal  matter  is  not  questioned ;  that  it  was  the  taking 
of  fecal  matter  into  the  lungs  which  caused  the  pneumonia  is 
claimed  by  all  of  the  surgeons  who  testified.  There  is  testimony 
that  he  might  have  recovered  without  any  operation,  although 
that  result  could  not  have  been  reasonably  expected. 


122  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Under  all  the  circumstances  of  the  case,  including  the  fact 
that  Jendrus  was  a  foreigner,  unable  to  speak  or  understand 
the  English  language,  that  he  was  suffering  great  pain  on  the 
evening  of  the  14th,  that  he  was  unacquainted  with  his  sur- 
roundings, and  that  he  did  consent  to,  and  did  submit  to,  an 
operation  within  15  or  16  hours  after  it  was  first  found  neces- 
sary, in  the  judgment  of  the  surgeons,  we  cannot  hold,  as  mat- 
ter of  law,  that  the  conduct  of  Jendrus  was  so  unreasonable 
and  persistent  as  to  defeat  the  claim  for  compensation  by  his 
widow.  Neither  can  we  hold  that  Jendrus  by  his  conduct  in 
the  premises  in  causing  a  delay  in  the  operation  was  guilty  of 
intentional  and  wilful  misconduct.  We  cannot  say,  as  mat- 
ter of  law,  that  the  industrial  accident  board  erred  in  its  con- 
clusions of  law  in  affirming  the  action  of  the  committee  on  ar- 
bitration. No  other  questions  of  law  are  presented  by  the 
record. 

The  judgment  and  decision  of  the  said  Board  is  therefore 
affirmed,  with  costs  against  appellants. 


SARAH  E.  ADAMS, 

Applicant, 
vs. 
ACME  WHITE  LEAD  &  COLOR  WORKS, 

Respondent. 

LEAD  POISONING — OCCUPATIONAL  DISEASE. 

Applicant's  decedent  was  employed  by  respondent  in  its  red 
plant.  He  contracted  lead  poisoning  from  the  effects  of  which 
he  died.  Compensation  was  refused,  under  the  contention  that 
his  death  was  not  the  result  of  an  accident,  but  a  disease,  and 
therefore  the  case  was  not  covered  by  the  act.  It  was  further 
contended  that  if  the  act  was  held  to  apply  to  industrial  diseases 
it  would,  in  that  respect,  be  unconstitutional. 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  123 

HELD:  1.  That  the  lead  poisoning  suffered  by  decedent  in  this 
case  constituted  a  personal  injury  of  a  serious  and  deadly  charac- 
ter, although  classified  under  the  English  decision  as  an  occupa- 
tional disease  and  not  an  accident. 

2.  That  part  of  Sec.  1,  Part  II,  which  covers  injuries,  received 
otherwise  than  by  accident,  is  not  such  a  variance  from  the  title 
of  the  act  as  to  render  a  portion  of  this  section  unconstitutional. 


Appeal  of  Acme  White  Lead  &  Color  Works  from  the  deci- 
sion of  an  arbitration  committee  awarding  Sarah  E.  Adams 
compensation  at  the  rate  of  $7.50  per  week  for  300  weeks  for 
the  death  of  her  husband.  Affirmed. 

Opinion  by  the  Board: 

Augustus  Adams,  the  husband  of  the  applicant,  was  an  em- 
ploye of  the  respondent,  working  in  its  Ked  Lead  plant,  so- 
called,  in  Detroit.  On  May  29,  1913,  he  became  so  affected  from 
lead  poisoning  that  he  was  obliged  to  quit  his  work  and  on 
June  27  he  died  from  the  effects  of  such  lead  poisoning.  These 
facts  are  undisputed  and  the  sole  question  in  the  case  is 
vdiether  the  Workmen's  Compensation  Act  covers  a  case  of 
death  by  lead  poisoning  arising  out  of  and  in  the  course  of  the 
employment.  It  is  contended  on  behalf  of  respondent  as  fol- 
lows : 

1.  That  lead  poisoning  is  not  an  accident. 

2.  That  Act  No.  10,  Public  Acts  of  1912,  was  not  intended 
to  provide  compensation  for  diseases,  but  only  accidents. 

3.  If  the  Act  does  apply  to  industrial  diseases,  it  is  so  far 
unconstitutional. 

It  seems  to  be  established  under  the  English  cases  that  Lead 
Poisoning  is  not  an  accident,  but  is  an  occupational  disease. 
It  seems  to  follow  from  this  that  unless  the  Michigan  Work- 
men's Compensation  Law  is  broad  enough  to  include  and  cover 
occupational  diseases  the  applicant's  claim  in  this  case  must 


124 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


be  denied.  The  controlling  provision  of  the  act  on  this  point 
is  found  in  Section  1  of  Part  II,  and  is  as  follows :  "If  an  em- 
ploye *  *  receives  a  personal  injury  arising  out  of  and  in 
the  course  of  his  employment,"  he  shall  be  entitled  to  compen- 
sation, etc.  It  will  be  noted  that  the  above  language  does  no1 
limit  the  right  of  compensation  to  such  persons  as  receive  per- 
sonal injuries  "by  accident."  The  language  in  this  respect  is 
broader  than  the  English  act  and  clearly  includes  all  personal 
injuries  arising  out  of  and  in  the  course  of  the  employment, 
whether  the  same  are  caused  "by  accident"  or  otherwise.  11 
is  equally  plain  that  Lead  Poisoning  in  this  case  in  fact  con- 
stitutes a  personal  injury,  and  that  such  personal  injury  was 
of  a  serious  and  deadly  character.  The  Board  is  therefore  o1 
the  opinion  that  the  section  of  the  Michigan  .Act  above  quot< 
is  broad  enough  to  cover  cases  of  Lead  Poisoning  such  as  th< 
one  in  question. 

It  is  claimed,  however,  on  behalf  of  the  respondent  that  th< 
title  of  the  act  is  such  as  to  exclude  all  personal  injuries  ex- 
cepting those  received  "by  accident"  and  that  in  so  far  as  th< 
body  of  the  act  is  broader  than  the  title,  it  is  unconstitutional. 
This  point  has  been  ably  briefed  and  argued  on  the  part  of  the 
respondent  and  we  are  asked  to  hold  in  this  case  that  the  por- 
tion of  the  provisions  of  Section  1  of  Part  II  which  covers  in- 
juries received  otherwise  than  by  accident  is  invalid  because  it 
is  broader  than  the  title.  After  a  careful  consideration  of  the 
question,  the  Board  has  reached  the  conclusion  that  it  would 
not  be  justified  in  holding  such  portion  of  the  Compensation 
Act  to  be  invalid  on  the  constitutional  grounds  urged  by  th 
respondent.  The  award  of  the  committee  on  arbitration  i 
therefore  affirmed. 


This  case  was  appealed  to  the  Supreme  Court  and  reversed, 
the  Court  holding  that  the  Michigan  Workmen's  Compensa- 
tion Law  is  limited  to  personal  injuries  ~by  'accident,  and  d< 
not  apply  in  cases  where  the  injury  is  classed  as  an  occupa- 
tional disease.    The  full  opinion  of  the  Supreme  Court  is  heri 
given : 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  125 


SUPREME  COURT. 

SARAH  E.  ADAMS, 

Applicant, 
vs. 
ACME  WHITE  LEAD  AND  COLOR  WORKS, 

Respondent. 

1.  ACCIDENT — DEFINITION — MASTER  AND  SERVANT — WORKMEN'S  COMPEN- 
SATION ACT — POISONING. 

An  accident  is  an  unforeseen  event,  occurring  without  the  design 
or  will  of  the  person  whose  act  causes  it;  it  partakes  of  the 
nature  of  an  unexpected  or  unusual  occurrence,  brought  about 
by  some  unknown  cause,  and  involving  something  fortuitous  or 
unexpected;  or,  if  the  cause  is  known,  having  an  unprecedented 
consequence. 

2.  MASTER  AND  SERVANT — ACCIDENT — PERSONAL  INJURIES. 

Under  the  provisions  of  the  workmen's  compensation  act,  no  re- 
covery may  be  allowed  for  occupational  diseases  such  as  lead 
poisoning,  which,  being  gradually  acquired,  is  outside  the  scope  of 
the  requirement  that  notice  is  to  be  given  within  ten  days  after 
an  accident,  and  of  the  title  and  terms  of  the  statute  as  to  com- 
pensating accidental  injuries.  Act  No.  10,  Pub.  Acts  Extra  Session 
1912  (2  How.  Stat.  (2d.  Ed.  §3939  et  seq.). 

3.  SAME — CONSTITUTIONAL  LAW — TITLE  OF  STATUTE. 

If  the  act  was  intended  to  include  such  occupational  diseases,  the 
title  was  not  broad  enough  to  express  that  object  within  Art.  5, 
Sec.  21,  of  the  Constitution. 


Certiorari  to  the  Industrial  Accident  Board  to  review  an 
award  of  compensation  to  Sarafc  E.  Adams  against  the  Acme 
White  Lead  &  Color  Works  for  the  death  of  claimant's  hus- 
band. Defendant  brings  certiorari.  Submitted  April  15,  1914. 
Reversed  July  25,  1914. 

Bowen,  Douglas,  Eaman  d  Barbour,  for  appellant. 
Noble  T.  Lawson,  for  appellee. 

STONE,  J.    The   questions  involved   in   this   case  are  raised 


126 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


on  certiorari  to  the  Industrial  Accident  Board.  On  Decem- 
ber 18,  1912,  Augustus  Adams,  a  resident  of  Sandwich,  On- 
tario, began  work  at  the  plant  of  the  Acme  White  Lead 
Color  Works  in  the  city  of  Detroit.  His  duties  were  those  o1 
a  sifter  or  bolter  tender  in  the  red  lead  plant.  His  worl 
brought  him  in  contact  with  the  lead.  On  May  29,  1913,  In 
left  his  work  at  the  quitting  time,  but  that  evening  became 
ill  that  he  was  unable  to  return  to  work  again.  He  died  01 
June  27,  1913.  There  is  no  doubt  that  the  cause  of  his  deatl 
was  lead  poisoning,  contracted  industrially;  i.  e.,  "was  ai 
occupational  disease,"  as  the  return  of  the  Industrial  Accidem 
Board  shows.  The  return  states: 

"That  during  said  period  between  December  18,  1912,  and  June  27, 
1913,  one  Augustus  Adams  was  in  the  employ  of  the  Acme  Whit< 
Lead  &  Color  Works;  *  *  *  and  that  during  said  period,  while  in  th( 
course  of  said  employment,  he  contracted  an  occupational  disease, 
to  wit,  red  lead  poisoning,  upon  the  premises  of  the  said  company, 
and  that  on  June  27,  1913,  he  died  as  a  result  of  said  disease." 

The  claim  of  the  widow,  under  .Act  No.  10  of  the  Public  Act* 
of  the  Special  Session  of  1912,  was  duly  presented  to  a  com- 
mittee of  arbitration  and  allowed.  Thereafter,  in  accordance 
with  the  provisions  of  said  act,  the  respondent  filed  with  the 
said  board  a  claim  for  review  of  the  decision  of  said  commit- 
tee on  arbitration,  and  later,  after  a  full  hearing,  the  said 
Board  made  and  entered  an  opinion  and  order,  denying  the 
centention  of  the  respondent,  and  affirming  the  award  of  said 
arbitration  committee.  The  opinion  of  the  said  board,  upon 
which  its  order  was  based,  so  fully  presents  the  questions  in- 
volved that  we  cannot  do  better  than  to  quote  therefrom.  Aftei 
referring  to  the  facts  above  set  forth,  it  is  said : 

"These  facts  are  undisputed,  and  the  sole  question  in  the  case  is 
whether  the  workmen's  compensation  act  covers  the  case  of  death 
by  lead  poisoning  arising  out  of  and  in  the  course  of  the  employ- 
ment. It  is  contended  on  behalf  of  respondent  as  follows:  (1-)  That 
lead  poisoning  is  not  an  accident;  (2)  that  Act  No.  10,  Public  Acts 
of  1912,  was  not  intended  to  provide  compensation  for  diseases,  but 
only  accidents;  (3)  if  the  act  does  apply  to  industrial  diseases, 
it  is  so  far  unconstitutional. 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  127 

"It  seems  to  be  established  under  the  English  cases  that  lead  poison- 
ing is  not  an  accident.  It  is  an  occupational  disease.  It  seems  to 
follow  from  this  that,  unless  the  Michigan  workmen's  compensation 
law,  is  broad  enough  to  include  and  cover  occupational  diseases,  the 
applicant's  claim  in  this  case  must  be  denied.  The  controlling  pro- 
vision of  the  act  on  this  point  is  found  in  section  1  of  part  2,  and  is  as 
follows:  'If  an  employee  *  *  *  receives  a  personal  injury  arising 
out  of  and  in  the  course  of  his  employment,'  he  shall  be  paid  com- 
pensation, etc.  It  will  be  noted  that  the  above  language  does  not 
limit  the  right  of  compensation  to  such  persons  as  receive  personal 
injuries  by  accident.  The  language  in  this  respect  is  broader  than 
the  English  act,  and  clearly  includes  all  personal  injuries  arising  out 
of  and  in  the  course  of  the  employment,  whether  the  same  are  caused 
'by  accident'  or  otherwise.  It  is  equally  plain  that  lead  poisoning  in 
this  case,  in  fact,  constitutes  a  personal  injury,  and  that  such  per- 
sonal injury  was  of  serious  and  deadly  character.  The  board  is  there- 
fore of  the  opinion  that  the  section  of  the  Michigan  act  is  broad 
enough  to  cover  cases  of  lead  poisoning,  especially  the  one  in  question." 

The  Board  also  reached  the  conclusion  that  it  would  not  be 
justified  in  holding  the  part  of  the  act  referred  to  invalid,  on 
constitutional  grounds. 

By  the  assignments  of  error,  it  is  claimed  that  the  Board 
erred:  First,,  in  construing  the  said  act  so  as  to  provide  for 
the  awarding  of  compensation  for  an  occupational  disease, 
specifically  red  lead  poisoning;  second,  in  overruling  appel- 
lant's contention  that,  if  in  said  act  the  legislature  intended 
to  provide  compensation  for  an  occupational  disease,  partic- 
ularly red  lead  poisoning,  said  act,  in  so  far  as  it  does  so  pro- 
vide, is  unconstitutional. 

1.  Does  the  Michigan  act  include  and  cover  occupational 
diseases?  This  is  a  fair  question,  and  should  be  fairly  an- 
swered. What  is  an  "occupation,"  or  "occupational  disease ?" 
The  Century  Dictionary  and  Cyclopedia  defines  an  "occupa- 
tion disease"  as  "a  disease  arising  from  causes  incident  to 
the  patient's  occupation,  as  lead  poisoning  among  painters." 
In  the  instant  case  the  undisputed  medical  evidence  shows 
that  lead  poisoning  does  not  arise  suddenly,  but  comes  only 
after  long  exposure.  "It  is  a  matter  of  weeks  or  months  or 
years."  It  is  brought  about  by  inhalation,  or  bv  the  lead  com- 


123  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ing  into  the  system  with  food  through  the  alimentary  canal 
or  by  absorption  through  the  skin.  In  any  case  it  is  not  th< 
result  of  one  contact  or  a  single  event. 

"In  occupational  diseases  it  is  drop  by  drop,  it  is  little  by  littl( 
day  after  day  for  weeks  and  months,  and  finally  enough  is  accumulate 
to  produce  symptoms." 

It  also  appears  that  lead  poisoning  is  always  prevalent  ii 
the  industries  in  which  lead  is  used,  and  a  certain  percenta^ 
of  the  workmen  exposed  to  it  become  afflicted  with  the  diseas 
Elaborate  precautions  are  taken  against  it  in  the  way  of  ii 
structions  to  the  men,  masks  to  protect  the  respiratory  01 
gans,  etc.    Whether  the  workman  will  contract  it  or  not  wil 
depend  upon  the  physical  condition,  care,  and  peculiarity  o1 
the  individual ;  and  the  amount  of  time  it  will  take  to  produ< 
ill  effects  or  death  also  varies. 

An  "accident"  is  defined  in  Black's  Law  Dictionary  as  fol 
lows: 

"Accident.    An  unforeseen  event,  occurring  without  the  will  or  d( 
sign  of  the  person  whose  mere  act  causes  it;  an  unexpected,  unusual, 
or   undesigned  occurrence;   the  effect   of  an  unknown   cause,  or,  the 
cause  being  known,  an  unprecedented  consequence  of  it;  a  casualty." 


It  might  be  well  to  keep  in  mind  the  conditions  sought  to 
remedied  by  the  diverse  workmen's  compensation  enactments 
which  have  been  adopted  by  several  of  the  States  of  the  Union 
and  in  foreign  countries.  The  paramount  object  has  been  for 
the  enactment  of  what  has  been  claimed  to  be  more  just  and 
humane  laws  to  take  the  place  of  the  common-law  remedy  fo 
the  compensation  of  workmen  for  accidental  injuries  receiv 
in  the  course  of  their  employment,  by  the  taking  away  and 
moval  of  certain  defenses  in  that  class  of  cases. 

In  this  our  own  act  is  not  an  exception.      It  first  provid 
that  in  any  action  to  recover  damages  for  personal  injury  su 
tained  by  an  employee  in  the  course  of  his  employment,"  or  fo 
death  resulting  from  personal  injuries  so  sustained,  it  shal 
not  be  a  defense:  (a)  That  the  employee  was  negligent  unle 
and  except  it  shall  appear  that  such  negligence  was  wilful 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  129 

(6)  that  the  injury  was  caused  by  the  negligence  of  a  fellow 
employee;  (c)  that  the  employee  had  assumed  the  risks  in- 
herent in  or  incidental  to  or  arising  out  of  his  employment, 
or  arising  from  the  failure  of  the  employer  to  provide  and 
maintain  safe  premises  and  suitable  appliances. 

It  is  then  enacted  that  the  above  provisions  shall  not  apply 
to  actions  to  recover  damages  for  the  death  of,  or  for  personal 
injuries  sustained  by,  employees  of  any  employer  who  has 
elected,  with  the  approval  of  the  industrial  accident  board 
thereinafter  created,  to  pay  compensation  in  the  manner  and 
to  the  extent  thereinafter  provided.  Manifestly,  the  terms 
"'personal  injury"  and  "personal  injuries,"  above  mentioned, 
refer  to  common-law  conditions  and  liabilities,  and  do  not 
refer  to  and  include  occupational  diseases,  because  an  em- 
ployee had  no  right  of  action  for  injury,  or  death  due  to  oc- 
cupational diseases  at  common  law,  but,  generally  speaking, 
only  accidents,  or,  rather,  accidental  injuries,  gave  a  right  of 
action.  We  are  not  able  to  find  a  single  case  where  an  em- 
ployee has  recovered  compensation  for  an  occupational  dis- 
ease at  common  law.  Certainly  it  can  be  said  that  in  this 
State  no  employer  has  ever  been  held  liable  to  the  employee 
for  injury  from  an  occupational  disease,  but  only  for  injuries 
caused  by  negligence.  It  seems  to  us  that  the  whole  scheme 
of  this  act  negatives  any  liability  of  the  employer  for  injury 
resulting  from  an  occupational  disease.  The  title  of  the  act 
is  significant: 

"An  act  to  promote  the  welfare  of  the  people  of  this  State,  relating 
to  the  liability  of  employers  for  injuries  or  death  sustained  by  their 
employees,  providing  compensation  for  the  accidental  injury  to,  or 
death  of  employees,  and  methods  for  the  payment  of  the  same,  estab- 
lishing an  industrial  accident  board,  defining  its  powers,  providing  for 
a  review  of  its  awards,  making  an  appropriation  to  carry  out  the  pro- 
visions of  this  act,  and  restricting  the  right  to  compensation  or 
damages  in  such  cases  to  such  as  are  provided  by  this  act." 

The  first  provision  defining  the  employers  who  are  subject 
to  the  act  is  found  in  section  5,  subd.  2,  of  part  1.    It  reads: 
17 


130  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"Every  person,  firm  and  private  corporation,  including  any  ser- 
vice corporation,  who  has  any  person  in  service  under  any  contract 
of  hire,  express  or  implied,  oral  or  written,  and  who,  at  or  prior  to 
the  time  of  the  accident  to  the  employee  for  which  compensation 
under  this  act  may  be  claimed,  shall  in  the  manner  provided  in  the 
next  section  have  elected  to  become  subject  to  the  provisions  of  this 
act,  and  who  shall  not,  prior  to  such  accident,  have  effected  a  with- 
drawal of  such  election,  in  the  manner  provided  in  the  next  section." 

While  not  controlling,  it  is  pertinent  to  note  the  history  of 
the  Michigan  act. 

By  Act  No.  245,  Public  Acts  of  1911,  the  Legislature 
created  a  commission — 

"To  make  the  necessary  investigation,  and  to  prepare  and  submit  a 
report  *  *  *  setting  forth  a  comprehensive  plan  and  recommending 
legislative  action  providing  compensation  for  accidental  injuries  or 
death  of  workmen  arising  out  of  and  in  the  course  of  employment." 

Section  2  of  the  act  reads : 

"It  shall  be  the  duty  of  the  commission  of  inquiry  to  fully  in- 
vestigate the  conditions  affecting,  and  the  problems  involved  in  the 
matter  of  compensation  for  accidental  injuries  or  death  of  workmen 
arising  out  of  and  in  the  course  of  employments." 

The  act  drawn  pursuant  to  this  authority  was  passed  by  the 
Legislature  without  change.  While  it  cannot  be  claimed  that 
the  power  of  the  Legislature  was  limited  to  enacting  the  bill 
prepared  by  the  commission,  yet,  when  that  body  passed  the 
bill  without  change,  it  may  be  said  that  it  adopted  the  mean- 
ing that  must  have  been  intended  by  the  commission. 

It  is  the  claim  of  appellant  that  lead  poisoning  contracted 
industrially  is  not  an  accident:  that  such  poisoning,  being 
something  that  is  contracted  by  a  fairly  certain  percentage 
of  those  working  in  industries  where  lead  is  used,  cannot  be 
considered  as  unexpected;  that  it  comes  as  a  gradual,  slow 
process,  and  hence  is  not  an  "accident."  The  appellee,  not 
agreeing  with  the  reasoning  of  the  board,  contends  that  the 
act  does  cover  injuries  occasioned  by  lead  poisoning,  and  that 
such  poisoning  contracted  in  the  course  of  employment  is  an 
"accidental  injury," 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  131 

The  English  act  of  1897  was  entitled : 

"An  act  to  amend  the  law  with  respect  to  compensation  to  workmen 
for  accidental  injuries  suffered  in  the  course  of  their  employment." 

The  body  of  the  act  provided  that: 

"If  in  any  employment,  to  which  this  act  applies,  personal  injury 
by  accident  arising  out  of  and  in  the  course  of  employment,  is  caused 
to  a  workman  his  employer  shall  be  liable." 

It  was  not  long  before  it  was  necessary  to  determine  what 
was  personal  injury  by  accident,  and  to  give  a  definition  of 
"accident."  In  Hensey  v.  White  (1900),  1  Q.  B.  481,  the  lang- 
uage of  an  earlier  case  was  approved  where  it  was  said: 

"I  think  the  idea  of  something  fortuitous  and  unexpected  is  in- 
volved in  both  words  'peril'  or  'accident.' " 

In  Fenton  v,  Thorley  &  Co.,  72  L.  J.  K.  B.  790,  it  was  said : 

"The  expression  'accident'  is  used  in  the  popular  and  ordinary 
sense  of  the  word  as  denoting  an  unlocked  for  mishap  or  an  untoward 
event  which  is  not  expected  or  designed." 

Finally,  in  Steel  v.  Cammell,  Laird  &  Co.,  Ltd.  (1905),  2  K. 
B.  232,  the  precise  point  was  decided.  The  applicant,  a 
caulker  in  the  employment  of  ship-builders,  was  seized  with 
paralysis,  caused  by  lead  poisoning,  and  became  totally  incap- 
acitated for  work.  In  the  course  of  his  work,  in  which  he  had 
been  employed  by  the  shipbuilders  for  a  period  of  two  years 
before  he  became  incapacitated,  he  had  to  smear  either  with 
red  or  white  lead  certain  places  between  the  plates  of  ships 
into  which  water-tight  shoes  were  put.  The  poisoning  was 
such  as  might  be  expected  from  Ihe  nature  of  the  work.  It 
might  be  caused  either  by  inhalation,  or  by  eating  food  with- 
out having  removed  the  lead  from  the  hands,  or  by  absorption 
through  the  skin.  Only  a  small  proportion  of  cases  of  pois- 
oning of  this  description  occurred  amongst  a  number  of  per- 
sons working  with  red  or  white  lead.  The  poisoning  could 
not  be  traced  to  any  particular  day,  and  its  development  was 
fi  gradual  process,  and  generally  took  considerable  time.  Held, 


132  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

that  the  lead  poisoning  could  not  be  described  as  an  "acci- 
dent," in  the  popular  and  ordinary  use  of  that  word,  so  as  to 
entitle  the  applicant  to  compensation  for  personal  injury  by 
accident  arising  out  of,  and  in  the  course  of,  his  employment, 
within  the  meaning  of  section  1  of  the  workmen's  compensa- 
tion act  of  1897.  Fenton  v.  Thortey  d  Co.,  72  L.  J.  K.  B.  787, 
and  BriittonS;  Lim.  v.  Turvey,  74  L.  J.  K.  B.  474,  considered. 
The  court  in  the  above  case  [Steel  v.  Cammtell,  Laird  &  Co., 
Ltd.]  reasoned  that,  under  the  act,  a  date  must  be  fixed  as 
that  on  which  the  injury  by  accident  occurred,  and  it  was 
said: 

"It  has  been  suggested  that  there  was  a  series  of  accidents  by  the 
continuous  absorption  of  lead,  by  one  or  other  of  the  three  processes 
named;  but  this  suggestion  does  not  meet  the  difficulty  which  arises 
from  the  provisions  of  the  act  as  to  notice  of  the  particular  date  of  the 
accident  or  injury." 

Others  of  the  judges  said  that  the  injury  was  not  unex- 
pected; that  it  was  certain  that  somebody  would  suffer,  and 
this  man  turned  out  to  be  susceptible  to  the  poison.  As  a  re- 
sult of  this  case,  it  was  found  necessary  to  change  the  act,  if 
cases  like  this  were  to  be  included;  so  in  1906,  less  than  a 
year  later,  the  act  of  6  Edw.  VII.,  chap.  58,  was  passed,  en- 
titled: 

"An  act  to  consolidate  and  amend  the  law  with  respect  to  compen- 
sation to  workmen  for  injuries  suffered  in  the  course  of  their  em- 
ployment." 

The  body  of  the  act  again  provides  compensation  for  "per- 
sonal injury  by  accident,"  but  it  also  (section  8)  provides 
that: 

"Where  the  disease  is  due  to  the  nature  of  any  employment  *  *  * 
he  or  his  dependents  shall  be  entitled  to  compensation  under  this  act 
as  if  the  disease  *  *  *  were  a  personal  injury  by  accident  arising 
out  of  and  in  the  course  of  that  employment" — if  it  be  one  of  the 
diseases  contained  in  schedule  3  of  the  act. 

In  that  schedule  "lead  poisoning"  and  its  sequelae  are  there- 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  133 

in  scheduled.     Of  this  act  the  Encyclopedia  of  Laws  of  Eng- 
land, vol.  5,  p.  227,  states: 

"The  extension  by  this  act  of  the  principle  of  workmen's  compensa- 
tion to  industrial  disease  is  a  new  departure.  Disease,  though  con- 
tracted industrially,  is  not  an  'accident'  in  the  ordinary  acceptation  of 
the  term." 

It  was  also  said  of  the  act  that  a  new  phase  in  workmen's 
compensation — compensation  for  disease  arising  out  of  em- 
ployment— was  a  new  feature  in  this  type  of  legislation.  The 
language  of  the  act  should  be  particularly  noted.  It  does  not 
attempt  to  declare  an  industrial  disease  an  "accident,'*  but 
gives  compensation  therefor  "as  if  the  disease  *  *  * 
were  a  personal  injury  by  accident." 

Considering  the  condition  to  be  remedied  and  the  history 
of  the  Michigan  act,  and  comparing  it  with  the  English  act 
of  1897,  we  are  not  able  to  agree  with  the  accident  board  when 
it  says,  referring  to  the  language  which  it  quotes,  that  our 
act  is  broader  than  the  English  act,  and  clearly  includes  all 
personal  injuries  arising  out  of  and  in  the  course  of  an  em- 
ployment, whether  the  same  are  caused  by  "accident"  or  other- 
wise. In  the  language  quoted  by  the  board  it  is  true  that  the 
words  "personal  injury"  are  used,  but  in  determining  the  na- 
ture of  the  personal  injury  intended  to  be  covered  by  the  act, 
the  whole  act,  with  its  title,  should  be  examined  and  consid- 
ered; and,  so  examined,  we  think  it  should  be  held  that  the 
words  "personal  injury,"  as  quoted  by  the  board,  refer  to  the 
kind  of  injury  included  in  the  title  and  other  portions  of  the 
act,  which  plainly  refer  to  "accident  injury  to,  and  death  of, 
employees."  The  whole  scope  and  purpose  of  the  statute,  in 
our  judgment,  was  to  provide  compensation  for  "accidental 
injuries,"  as  distinguished  from  "occupational  diseases."  We 
must  hold,  therefore,  that  the  provisions  of  the  act  of  this 
State  are  very  similar  to  the  early  English  act  above  referred 
to. 

We  have  shown  how  the  English  act  was  subsequently 
amended  by  adding  the  provision  permitting  the  recovery  of 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

compensation  for  certain  scheduled  diseases,  caused  by,  or 
especially  incident  to,  particular  employments — diseases 
known  as  occupation  or  industrial  diseases.  Not  before,  but 
since,  the  passage  of  this  amendment  to  the  English  act,  the 
English  courts  have  sustained  the  rights  of  recovery  in  such 
cases  as  are  here  presented.  The  framers  of  our  act  either  did 
not  know  of  the  amendment  to  the  English  act,  or  else  they 
did  not  intend  to  permit  the  recovery  of  compensation  in  such 
cases.  If  it  is  said  that  it  is  just  as  important  to  protect  em- 
ployees against  such  conditions  as  are  here  presented  as  it  is 
to  protect  them  against  injuries  arising  from  what  are  strictly 
termed  "accidents,"  our  answer  is  that  that  is  a  matter  which 
should  be  addressed  to  the  Legislature.  In  the  absence  of  a 
provision  in  the  statute  meeting  this  situation,  the  court  is 
unable  to  award  a  recovery. 

Counsel  for  appellee  have  referred  to  some  of  the  English 
cases  where  compensation  was  allowed  for  injuries  caused 
by  poisoning,  but  an  examination  of  those  cases  will  show 
that  the  injuries  were  purely  accidental.  Higgins  v.  Campbell 
&  Harrison,  Ltd.  (1904),  1  K  B.  328,  affirmed  (1905)  A.  C. 
230,  is  a  fair  illustration  of  those  cases.  There  a  workman 
employed  in  a  woolcombing  factory  in  which  there  was  wool 
which  had  been  taken  from  sheep  infected  with  anthrax  con- 
tracted that  disease  by  contact  with  the  anthrax  bacillus 
which  was  present  in  the  wool.  In  that  case  compensation 
was  allowed,  and  it  was  held  that  the  workman  was  injured 
by  accident  arising  out  of  and  in  the  course  of  his  employ- 
ment within  the  meaning  of  the  English  act  of  1897.  The 
court  treated  the  disease  as  caused  by  an  accident,  by  one 
particular  germ  striking  the  eyeball.  It  was  considered  that 
the  accidental  alighting  of  the  bacillus  from  the  infected  wool 
on  the  eyeball  caused  the  injury.  It  was  treated  as  if  a  spark 
from  an  anvil  hit  the  eye.  This  may  be  seen  from  the  state- 
ment of  Lord  Macnaghten: 

"It  was  an  accident  that  the  thing  struck  the  man  on  a  delicate  and 
tender  spot  in  the  corner  of  his  eye." 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  135 

We  think  that  this  and  kindred  cases  can  be  readily  dis- 
tinguished from  the  lead  poisoning  cases. 

The  same  difficulty  about  giving  notice  of  the  accident  or 
injury  noted  in  the  English  act  applies  to  the  Michigan  act. 
Every  employer  is  required  to  keep  a  record  of  all  injuries, 
fatal  or  otherwise,  received  by  employees  in  the  course  of 
their  employment.  Section  17  of  part  3  of  our  statute  pro- 
vides that: 

"Within  ten  days  after  the  occurrence  of  an  accident  resulting  in 
personal  injury  a  report  thereof  shall  be  made  in  writing  to  the  indus- 
trial accident  board  on  blanks  to  be  procured  from  the  board  for  that 
purpose." 

And  a  penalty  is  prescribed  for  neglect  to  make  such  report. 

In  the  instant  case  Adams  left  his  place  of  employment  at 
the  usual  quitting  time  on  May  29,  1913.  He  did  not  return. 
What  knowledge  his  employer  had  of  his  sickness  does  not 
appear.  It  is  not  apparent  what  notice  could  be  given  imder 
our  statute  in  such  a  case.  If  our  statute,  in  its  present  form, 
should  be  held  to  apply  to  occupational  or  industrial  diseases, 
then  compensation  might  be  claimed  of  an  employer  where  the 
term  of  employment  had  been  for  a  brief  period,  whereas  the 
disease  may  have  been  contracted  while  in  the  employment  of  a 
former  employer.  All  this  is  provided  for  in  the  amendment  of 
1900  in  the  English  act,  where  provision  is  made  for  investiga- 
tion and  apportionment  among  employers  for  whom  the  em- 
ployee worked  during  the  previous  year  "in  the  employment  to 
the  nature  of  which  the  disease  was  due."  There  is  no  such  ma- 
chinery or  procedure  provided  for  in  our  statute. 

We  are  not  unmindful  of  the  holdings  of  the  supreme  court 
of  Massachusetts  in  Re  Hurle,  217  Mass.  223  (104  N.  E.  336), 
and  Johnson  v.  Accident  Co.,  104  K.  E.  735.  In  the  latter  case 
that  court  held  that  the  personal  injury  of  a  lead  grinder, 
sickness  incapacitating  him  from  work  resulting  from  the  ac- 
cumulated effect  of  gradual  absorption  of  lead  into  his  sys- 
tem, arose  "out  of  and  in  the  course  of  his  employment"  with- 
in the  workmen's  compensation  act  (Stat.  1911,  chap.  751) 


136 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


of  that  State.    That  case  is  founded  upon  In  re  Hurle,  si 
which  was  a  case  of  blindness  incurred  from  an  acute  attacl 
of  optic  neuritis,  induced  by  the  poisonous  coal  tar  gases 
caping  from  a  furnace  about  which  he  was  required  to  worl 
The  matter  of  accidental    injury    was   not   discussed    by  the 
court.     The  court  said: 

"The  question  to  be  decided  is  whether  this  was  a  'personal  injui 
arising  out  of  and  in  the  course  of  his  employment'  within  the  mean- 
ing of  those  words  in  the  statute." 

The  court  further,  in  referring  to  the  comments  of  couns< 
for  the  employer  that  the  act  could  not  apply  to  such  an  i] 
jury  as  that  sustained,  said: 

"It  might  be  decisive  if  'accident'  had  been  the  statutory  word.  II 
is  true  that  in  interpreting  a  statute  words  should  be  construed  in  theii 
ordinary  sense.  'Injury,'  however,  is  usually  employed  as  an  inclusri 
word.  The  fact  remains  that  the  word  'injury,'  and  not  'accident,' 
was  employed  by  the  legislature  throughout  this  act." 

As  "accident"  is  the  controlling  word  in  our  act,  we  do  no1 
think  that  the  Massachusetts  decision  should  be  held  to  appl; 
here,  as  the  construction  of  that  act  has  little,  if  any,  beai 
ing  on  the  Michigan  act. 

Our  attention  has  been  called  to  the  Massachusetts  act, 
which  differs  in  many  respects  from  our  act.  That  act  is  en- 
titled: ' 

"An  act  relative  to  payments  to  employees  for  personal  injuries 
received  in  the  course  of  their  employment,  and  to  the  prevention  of 
such  injuries." 

The  whole  scope  of  the  act  seems  to  be  to  provide  for  com- 
pensation for  personal  injuries  received  in  the  course  of  em- 
ployment.    In  many  instances  where  the  word  "accident"  o< 
curs  in  our  statute  the  word  "injury"  is  used  in  the  Massa- 
chusetts statute.     It  is  true  that  the  Massachusetts  board  ii 
termed  an  "Industrial  Accident  Board,"  but,  aside  from  th< 
use  of  the  word  "accident"  in  that  title,  we  are  unable  to  fin< 
the  word  in  the  body  of  the  act,  except  in  two  instances  ii 


ADAMS  vs.  ACME  WHITE  LEAD  &  COLOR  WORKS.  137 

section  18  of  part  3,  which  provides  for  the  keeping  of  a  rec- 
ord and  making  a  report  by  the  employer  in  case  of  accident. 
This  may  be  said  not  to  be  very  controlling;  but,  in  our  judg- 
ment, it  has  to  do  with  the  inquiry  as  to  the  scope  of  the  act. 
We  are  unable  to  follow  those  cases  as  authority  under  our 
statute. 

In  New  Jersey,  in  the  case  of  Hichens  v.  Metal  Co.,  N.  J. 
Law  Journal  (Com.  PL  June  25,  1912),  p.  327  which  arose  un- 
der the  New  Jersey  act  (P.  L.  1911,  p.  134)  entitled  very  sim- 
ilarly to  the  Massachusetts  act,  to  wit — 

"An  act  prescribing  the  liability  of  an  employer  to  make  compensa- 
tion for  injuries  received  by  an  employee  in  the  course  of  employ- 
ment, establishing  an  elective  schedule  of  compensation,  and  regulat- 
ing procedure  for  the  determination  of  liability  and  compensation 
thereunder" 

—it  was  held  that  compensation  could  not  be  awarded  for  a 
disease  known  as  copper  poisoning,  caused  by  contact  with 
the  copper  filings  and  inhaling  the  dust  from  same  by  an  em- 
ployee in  his  work,  which  involved  the  grinding  and  polish- 
ing of  brass  products.  This  decision  cannot  be  considered  as 
authoritative,  as  it 'is  that  of  the  court  of  common  pleas,  and 
not  the  court  of  last  resort. 

The  Federal  compensation  act "  (Act  May  30,  1908,  chap. 
236,  35  Stat.  556  [U.  S.  Comp.  Stat.  Supp.  1911,  p.  468]),  re- 
lating to  government  employees  does  not  contain  the  word 
"accident"  in  the  principal  clause,  but  provides  that  compen- 
sation shall  be  granted  "if  the  employee  is  injured  in  the 
course  of  such  employment."  Subsidiary  clauses  provide  for 
the  reporting  of  "accidents,"  and  otherwise  refer  to  "acci- 
dental injuries." 

In  the  latest  opinion  of  the  attorney  general,  being  in  the 
case  of  John  Sheeran,  where  the  employee  was  a  laborer  en- 
gaged in  river  and  harbor  construction,  and,  while  engaged 
in  work  in  the  course  of  his  employment,  contracted  a  severe 
cold,  which  resulted  in  pneumonia,  that  officer  said: 

"There  is  nothing  either  in  the  language  of  the  act  or  its  legislative 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

history    which    justifies    the    view   that   the    statute    was    intended   to 
cover    disease    contracted    in    the    course    of    employment,    although 
directly  Attributable  to  the  conditions  thereof.    On  the  contrary,  it  ai 
pears  that  the  statute  was  intended  to  apply  to  injuries  of  an  ac 
dental  nature  resulting  from  employment  in  hazardous  occupations 
not  to  the  effects  of  disease." 

It  has  been  reiterated  under  the  Federal  act  that  acute  lea< 
poisoning  is  not  such  an  injury  as  eatfitles  an  employee  to 
compensation.     Similarly,    where    a    workman    suffered  fron 
cystitis  and  prostatitis,  which  he  claimed  was  the  result  o 
overwork,  it  was  held  that  he  was  merely  suffering  from  dis 
ease  which  was  not  covered  by  the  terms  of  the  Federal  ac 
and  compensation  was  refused.     1  Bradbury  on   Workmen' 
Compensation   (2d  Ed.)  pp.  342,  343. 

We  are  of  opinion  that  in  the  Michigan  act  it  was  not  th 
intention  of  the  legislature  to  provide  compensation  for  ii 
dustrial  or  occupational  diseases,  but  for  injuries  arisin 
from  accidents  alone. 

2.     If  it  were  to  be  held  that  the  act  was  intended  to  appl 
to.  such  diseases,  it  would,  in  so  far  as  it  does  so,  be  unconst 
tutional  and  in  violation  of  section  21  of  article  5  of  the  Con 
stitution  of  this  State,  which  provides,  that: 

"No  law  shall  embrace  more  than  one  object,   which  shall  be  ex- 
pressed in  its  title." 

That  the  act,  if  it  were  held  to  apply  to  and  cover  occupa- 
tional diseases  is  unconstitutional  in  so  far  as  it  does  so  is 
shown  by  the  fact  that  the  body  of  the  act  would  then  have 
greater  breadth  than  is  indicated  in  the  title.    A  careful  anal 
ysis  of  the  title  of  the  act  shows  that  the  controlling  wor 
are  ''providing  compensation  for  accidental  injury  to  or  deai 
of  employees."     No  compensation  is  contemplated  except  f( 
such  injuries.      The  prefatory  words  are  generally  dependei 
upon  the  above-quoted  clause.     The  only  compensation  pi 
vided  is  for  "accidental  injury  to  or  death  of  employees,"  am 
the  last  clause  of  the  title  restricts  the  right  to  compensatioi 
or  damages  in  such  cases  "to  such  as  are  provided  by  this 
act." 


REDFIELD  vs.  DR.  DENTON'S  SLEEPING  GARMENT  MILLS.  139 

The  Massachusetts  decisions  have  no  bearing  upon  this 
branch  of  the  case  for  two  reasons:  One  is  that  the  titles  of 
the  respective  acts  differ  materially;  and  the  other  reason 
is  that  Massachusetts  has  no  such  constitutional  provision  as 
ours  above  quoted.  We  have  dealt  with  this  question  of  title 
too  recently  to  make  it  necessary  to  refer  to  our  numerous 
decisions  upon  the  subject. 

For  the  reasons  above  given,  we  are  constrained  to  reverse 
the  order  and  judgment  of  the  Industrial  Accident  Board. 

Reversed. 


KATHARYN  REDFIELD, 

Applicant  and  Appellee, 
vs. 
DR.  DENTON'S  SLEEPING  GARMENT  MILLS, 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 

Respondents  and  Appellants. 

INTENTIONAL  AND  WILFUL  MISCONDUCT — DISEASE — CUMULATIVE  EVIDENCE. 
Applicant's  decedent  received  injuries  by  his  hand  coming  in  con- 
tact with  the  gears  in  a  carding  machine  in  appellant's  factory. 
Gangrene  set  in  and  he  died  on  May  4,  which  was  sixteen  days 
after  the  injury.  Appellants 'contend  that  the  injury  was  the 
result  of  the  wilful  and  intentional  misconduct  of  decedent,  by 
his  disregarding  the  signs  warning  employees  to  keep  their  hands 
off  the  machines  and  not  to  clean  machines  while  in  motion;  and 
further,  that  he  was  suffering  from  diabetes  when  injured  and 
that  his  death  was  the  result  of  that  disease. 

HELD:     1.     That  the   act  which  decedent  was  performing   at  the 
time  of  his  injury,  was  picking  off  some  of  the  cotton  which  had 


140  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

collected  on  the  carding  cylinder,  and  that  such  action  was  neces- 
sary and  ordinarily  performed  by  and  required  of  the  operator  of 
the  machine. 

2.  That  the   claim   that   death   was    due   to   diabetes   was   not 
sustained  by  the  proofs. 

3.  The  application  of  the  respondents  made  after  the  hearing 
on  review  for  leave  to  take  testimony  of  expert  witnesses  in  De- 
troit and  elsewhere,  which  testimony  would  be  merely  cumulative, 
denied. 


Appeal  of  Michigan  Workmen's  Compensation  Mutual  In- 
surance Co.  from  the  decision  of  an  arbitration  committee, 
awarding  Katharyn  Kedfield  $5.25  per  week  for  300  weeks, 
for  the  death  of  her  husband.  Affirmed. 


Opinion  by  the  Board: 

On  April  18,  1913,  William  H.  Kedfield,  the  husband  of  the 
applicant,  was  injured  in  the  factory  of  the  Dr.  Denton 
Sleeping  Garment  Mills  at  Centerville,  Michigan.  He  was  em- 
ployed in  the  card  room  in  the  factory,  where  for  many  years 
he  had  worked  as  a  carder  in  operating  the  carding  machines. 
There  was  no  eye  witness  to  the  accident,  but  it  appeared  from 
the  blood  on  the  machinery  and  other  circumstances  that  his 
hand  was  caught  in  a  large  card  cylinder  and  the  gear  con- 
nected with  it.  The  hand  was  badly  lacerated,  necessitating 
the  amputation  of  three  fingers.  The  other  injuries  to  the 
hand  above  the  fingers  were  dressed  and  treated  an  effort  be- 
ing made  to  save  as  much  of  the  hand  as  possible.  The  in- 
jured man  was  taken  to  the  hospital  at  Kalamazoo  for  treat- 
ment, and  while  there  gangrene  set  in  and  he  died  on  May 
4th.  It  is  the  claim  of  the  applicant  that  compensation  should 
be  denied  for  two  reasons : 

1.  That  the  deceased  was  guilty  of  wilful  and  intentional 
misconduct. 

2.  That  he  was  suffering  from  diabetes  when  injured,  and 


REDFIELD  vs.  DR.  DENTON'S  SLEEPING  GARMENT  MILLS.  141 

that  his  death  was  the  result  of  the  disease  rather  than  the 
injury. 

The  claim  of  intentional,  wilful  misconduct  is  based  on 
what  is  claimed  to  be  a  violation  of  the  factory  rules  by  de- 
ceased. It  was  shown  that  on  each  of  the  carding  machines 
was  one  or  more  signs  "hands  off,"  and  also  that  there  were 
signs  through  the  factory  and  in  the  carding  room  to  the 
effect  that  "cleaning  machinery  while  in  motion  is  strictly 
forbidden."  It  is  claimed  that  deceased  was  in  the  act  of  pick- 
ing off  some  of  the  cotton  which  had  collected  on  the  card 
cylinder  near  the  gear  when  he  received  his  injury,  and  that 
such  act  constituted  a  violation  of  the  above  rules.  This 
claim,  however,  was  refuted  by  the  testimony  of  the  general 
manager  and  also  the  secretary  and  treasurer  of  the  Dr.  Den- 
ton  Company.  It  was  shown  by  the  testimony  of  these  wit- 
nesses that  the  carding  machines  are  so  adjusted  that  the  ma- 
chinery operates  through  a  system  of  weights  and  when  it 
reaches  a  certain  weight  then  it  dumps  down  upon  the  apron, 
and  if  any  person  puts  his  hands  on  the  machinery  and  dis- 
turbs the  mechanism  it  would  cause  the  machine  to  dump 
and  seriously  interfere  with  its  operation.  That  the  sign 
"hands  off"  was  put  up  to  warn  people  not  to  put  their  hands 
on  the  machine  because  of  producing  the  above  results,  and 
not  because  the  machinery  was  dangerous.  These  signs  were 
put  there  by  the  manufacturers  of  the  machines.  It  was  fur- 
ther shown  by  the  same  witnesses  that  the  sign  relating  to  the 
cleaning  of  the  machinery  while  in  motion  did  not  refer  to 
picking  off  accumulations  of  cotton  on  the  cards  or  gears  but 
referred  to  the  general  cleaning  of  the  machines.  That  it  was 
necessary  in  the  operation  of  the  card  machine  to  pick  off  ac- 
cumulations of  cotton  while  the  machinery  was  in  motion, 
and  that  the  employes  were  expected  and  required  to  do  it. 
That  every  time  a  carding  machine  is  stopped  it  produces  an 
unevenness  in  the  work,  involves  the  loss  of  time  and  impairs 
the  quality  of  the  product.  If  the  accumulations  were  not 
picked  off  it  would  produce  thickening  in  parts  of  the  product 


112 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


and  make  it  unfit  for  use.  Picking  off  cotton  in  this  way 
while  the  machines  were  in  operation  was  in  fact  a  part  of  the 
duties  of  the  operator.  This  testimony  is  practically  undis- 
puted, and  the  first  point  must  be  held  against  the  respond- 
ents. 

The  claim  that  the  gangrene  and  the  resulting  death  of  the 
deceased  was  caused  by  his  diabetes  and  not  by  the  injury 
must  also  be  decided  against  the  respondents.  The  testimony 
produced  in  support  of  this  claim,  particularly  the  medical 
testimony,  fell  far  short  of  proving  the  same,  and  apparently 
was  disappointing  to  the  respondents. 

We  think  we  should  refer  in  this  opinion  to  the  request 
made  by  counsel  for  fhe  respondent  after  the  hearing  on  review 
before  the  full  Board  and  before  the  decision  of  the  case,  for 
leave  to  take  the  depositions  of  several  physicians  in  Detroit, 
who  would  give  expert  evidence  tending  to  show  that  Mr. 
Eedfield's  death  was  caused  by  gangrene  produced  by  di- 
abetes. The  Board  refused  to  grant  such  request.  The  Work- 
men's Compensation  Law  provides  that  the  arbitration,  which 
is  the  first  and  fundamental  hearing  in  the  case,  shall  be  held 
at  the  place  where  the  accident  occurred,  in  order  to  make 
such  hearing  reasonably  convenient  and  inexpensive  to  the 
injured  workman  or  his  dependents.  The  witnesses  in  such 
case  on  behalf  of  the  workman  or  his  dependents  are  usually 
found  at  or  near  the  place  where  the  accident  occurred,  and 
the  same  is  true  of  the  witnesses  for  the  employer  in  a  vast 
majority  of  cases.  If  the  board  should  permit  a  reopening  of 
the  case  to  take  such  proposed  expert  testimony  in  a  distant 
city,  necessitating  the  expense  on  the  part  of  the  widow  to 
be  present  at  the  taking  of  such  testimony  and  to  protect  her 
interest  by  cross-examination  of  witnesses,  such  action  would 
defeat  one  of  the  most  important  provisions  of  the  law  and 
such  practice  would  place  it  in  the  power  of  the  employer  to 
nijike  the  recovery  of  compensation  in  some  cases  so  vexa- 
tious and  expensive  as  to  compel  the  abandonment  of  claims. 
This  is  not  a  case  of  newly  discovered  evidence,  but  is  a  re- 
quest for  permission  to  put  in  expert  and  opinion  evidence 


REDFIELD  vs.  DR.  DENTON'S  SLEEPING  GARMENT  MILLS.  143 

which  would  be  merely  cumulative.     The  award  in  this  case 
is  affirmed. 


This  case  was  appealed  to  the  Supreme  Court,  and  the  deci- 
sion of  the  Board  affirmed,  the  full  opinion  of  the  Supreme 
Court  being  as  follows: 


SUPREME  COURT. 

KATHARYN  REDFIELD, 

Claimant  and  Appellee, 
vs. 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY/ 

and 

DR.  DENTON'S  SLEEPING  GARMENT  MILLS, 
Respondents. 

1.  MASTER  A.XD  SERVANT — DANGEROUS  MACHINERY — WARNING — CONTRIBU- 
TORY NEGLIGENCE — WORKMEN'S  COMPENSATION. 

Where  a  former  superior  servant  of  a  corporation  testified  that 
signs  were  placed  on  machines  in  the  shop,  marked  "Hands 
Off,"  to  warn  employees  from  touching  the  machinery,  for  the 
reason  that  such  act  tended  to  disturb  the  adjustment,  and  the 
warning  was  not  intended  as  a  danger  sign,  there  was  sufficient 
testimony  to  support  the  finding  of  the  Industrial  Accident 
Board,  that  the  warning  was  not  against  danger. 

2.  SAME. 

HELD:  also,  that  signs  placed  about  the  shop  advising  servants 
not  to  clean  machinery  in  motion  did  not  prohibit  an  employee 
from  removing  collections  of  cotton  which  frequently  gathered 
on  a  guard  of  the  carding  machine  and  that  required  to  be  re- 
moved in  order  to  prevent  imperfections  in  the  cloth. 

3.  APPEAL  AND  ERROR — INDUSTRIAL  ACCIDENT  BOARD. 

Only  where  there  is  no  proof  to  support  a  finding  of  fact  can  the 
court  interfere  with  the  finding  of  the  accident  board  on  certiorari. 

4.  MASTER     AND     SERVANT — WORKMEN'S     COMPENSATION — INSURANCE — 
PRACTICE. 


144  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Where  the  date  of  hearing  was  fixed  on  September  9th,  and  the 
insurance  company  which  indemnified  the  employer  against 
accidents  did  not  appear,  but  the  attorneys  for  claimant  ap- 
peared and  were  heard,  no  ground  of  objection  could  be  based 
on  the  action  of  the  Board  in  declining  to  hear  further  testi- 
mony, though  granting  the  insurer  a  hearing  on  a  subsequent 
date. 


Certiorari  to  the  Industrial  Accident  Board.  Submitted 
January  20,  1914.  Decided  January  4,  1915. 

Katharyn  Kedfield  presented  her  claim  for  compensation 
for  the  death  of  her  husband,  William  Kedfield,  while  em- 
ployed by  the  Dr.  Denton  Sleeping  Garment  Mills.  Contest- 
ant, the  Michigan  Workmen's  Compensation  Mutual  Insur- 
ance Company,  bring  certiorari  from  an  order  awarding  com- 
pensation. Affirmed. 

Beaumont,  Smith  d  Harris,  for  appellant, 
George  H.  Arnold,  for  claimant. 

BIRD,  J.  Claimant's  husband,  William  Kedfield,  was  an 
employee  of  the  Dr.  Denton  Sleeping  Garment  Mills,  at  Cen- 
terville.  On  April  18th,  while  so  employed,  he  received  a  seri- 
ous injury  to  one  of  his  hands,  which  resulted  later  in  an  am- 
putation of  three  fingers.  Gangrene  set  in  and  16  days  there- 
after he  died.  His  widow  petitioned  the  Industrial  Accident 
Board  to  have  her  claim  adjusted.  Proofs  were  taken  and  an 
award  made  by  an  arbitration  committee  of  $5.25  a  week  for 
300  weeks.  On  appeal  to  the  Industrial  Accident  Board  the 
award  was  affirmed.  The  proceedings  were  then  removed  to 
this  court  by  a  Writ  of  Certiorari.  Exception  is  taken  to  the 
following  findings  of  fact,  it  being  claimed  that  the  testimony 
does  not  support  them: 

"(15).  At  the  time  of  the  accident  there  was  on  each  of  the  card- 
ing machines  one  or  more  signs  reading,  'Hands  Off,'  such  being 
placed  on  the  machines  by  the  manufacturer.  These  carding  machines 
are  so  adjusted  that  they  operate  through  a  system  of  weights,  and 
when  the  weight  reaches  a  certain  point,  the  machine  dumps  down 


REDFIELD  vs.  DR.  DENTON'S  SLEEPING  GARMENT  MILLS.  145 

upon  the  apron;  and,  if  a  person  coming  near  the  machine  should 
rest  his  hand  upon  it,  such  action  would  disturb  the  mechanism  and 
cause  the  machine  to  dump,  thereby  seriously  interfering  with  its 
operation.  That  the  sign,  'Hands  Off,'  was  put  up  not  as  a  warning 
against  danger,  but  to  prevent  people  from  disturbing  the  operation 
of  the  machines  and  so  cause  it  to  dump." 

"(16)  There  were  also  signs  posted  in  the  room  reading,  'Clean- 
ing machinery  while  in  motion  positively  forbidden.'  But  this  did  not 
have  reference  to  picking  off  cotton  while  machine  was  in  motion, 
caught  on  different  parts  of  the  machine  but  not  in  a  dangerous  place. 
Picking  off  accumulations  of  cotton  while  the  machine  was  in  motion 
was  part  of  the  duty  of  the  operator." 

It  appears  from  the  record  that  the  deceased  was  engaged 
in  the  carding  room,  in  which  there  were  four  carding  ma- 
chines. Each  machine  consisted  of  a  picker,  a  breaker  and  a 
finisher.  While  these  are  different  machines,  they  are  con- 
nected together  and  operated  as  one  set.  The  deceased  had 
charge  of  one  set  and  it  was  his  duty  to  watch  the  yarn  as  it 
came  from  the  carder  and  take  care  of  the  machines  while  they 
were  in  motion.  The  testimony  tends  to  show  that  the  de- 
ceased was  working  at  the  time  of  his  injury  on  the  finisher. 
The  finisher  consists,  in  part,  of  two  cylinders  with  protrud- 
ing ends  of  small  wires.  As  the  cylinders  revolved  in  oppo- 
site directions  they  separated  the  cotton.  In  front  of  the 
cylinders  and  close  to  them,  was  a  metal  guard  to  protect  the 
operator  against  injury.  Sometimes  the  cotton  would  collect 
on  this  guard,  and,  if  not  removed,  it  would  cause  an  imper- 
fection in  the  product.  The  findings  show  that  it  was  near 
this  guard  that  the  injury  occurred.  Exception  to  finding 
No.  16  raises  the  question  as  to  whether  the  removing  of  the 
cotton  at  this  point  was  cleaning  the  machines,  in  such  a 
sense  as  to  make  his  conduct  a  violation  of  the  posted  rule 
that,  "Cleaning  machinery  while  in  motion  is  strickly  forbid- 
den." 

Touching  this  question,  Frank  S.  Cummings,  who  had  been 
formerly  general  manager,  and  was  at  the  time  secretary  and 
treasurer  of  the  company,  testified  as  follows: 
19 


146  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"Q.  I  will  ask  if  when  you  were  manager,  if  a  little  piece  of  cotton 
got  close  to  the  wire  where  it  was  not  considered  dangerous  to  pick 
it  off,  would  they  pick  it  off  without  stopping  the  machine? 

"A.  Any  careful  employee,  any  conscientious  employee  kept  his 
machine  clean. 

"Q.    Well,  now,  to  get  to  that,  would  he  pick  off  the  cotton  there? 

"A.     Yes,  sir. 

"Q.     Where  it  might  interfere  with  the  product? 

"A.     Yes,  sir;   with  reasonable  care  there  was  no  danger. 

"Q.  Would  you  cons'der  this  sign  'cleaning  machinery,'  would  it 
apply  to  picking  off  that  little  cotton  that  might  injure  the  product — 
would  you  stop  the  machine  for  that? 

"A.  If  it  was  not  in  a  dangerous  place,  it  did  not  apply  to  that; 
it  was  commonly  done. 

"Q.  That  is,  the  employees  were  expected  to  do  it,  weren't  they, 
to  keep  them  clean  and  pick  off  anything  like  that? 

"A.    Yes,  sir." 

Frank  S.  Thomas,  manager  of  the  company,  testified  that: 

"I  posted  the  signs  all  over  the  mill  as  a  general  precaution  against 
accidents  that  might  result  from  cleaning  machinery  while  it  was  in 
motion.  *  *  *  The  common  custom,  however,  is  in  the  mills  to  pick 
the  cotton  off  from  the  cards,  and  I  do  not  think  our  understanding 
of  the  words  'Cleaning  Machinery,'  included  that. 

"A.  As  I  say,  I  don't  think  our  understanding  of  'cleaning  ma- 
chinery,' included  picking  off  such  as  it  was  reasonably  safe  to  pick 
off  while  the  machines  were  in  motion,  because  it  was  really  im- 
practical to  handle  the  machines  in  any  other  way. 

"Q.  To  stop  the  machines  to  pick  off  a  little  cotton  that  might  be 
caught  in  there  that  you  could  reach  handily  would  impair  the  product 
of  the  machine? 

"A.  Yes,  sir;  every  time  you  stop  the  card,  there  is  unevenness 
produced  in  the  work,  and  of  course,  it  involves  a  loss  of  time,  and 
naturally  every  practicable  attempt  to  keep  the  machine  in  continued 
operation  is  taken." 

The  testimony  relied  upon  to  support  finding  No.  15  is  as 
follows:  Speaking  of  the  sign  on  the  machinery,  "Hands 
Off,"  the  witness,  Frank  S.  Cummings,  testified: 

"A.    Yes,  sir.    Those,  perhaps,  if  I  may  be  permitted  to  explain,  were 
never  put  there  as  an  indication  of  danger. 
"Q.     Did  you  put  them  there? 
"A.    Yes,  sir;  I  was  here  when  the  machines  were  bought,  and  they 


REDFIELD  vs.  DR.  DENTON'S  SLEEPING  GARMENT  MILLS.  147 

were  on  the  machines  when  they  were  put  there  by  the  manufacturers 
of  the  machines. 

"Q.     You  don't  know  why  the  manufacturers  put  them  there? 

"A.  Surely.  Simply  because  putting  your  hands  on  them  dis- 
turbed the  mechanism  of  the  machinery.  There  is  no  danger  from 
that.  The  machinery  operates  through  a  system  of  weights,  and  when 
it  reaches  a  certain  weight,  then  it  dumps  down  on  to  the  apron,  and 
if  anybody  puts  their  hands  in  there,  and  disturbs  the  mechanism,  it 
makes  it  work  irregularly,  and  it  has  to  be  repaired,  it  is  simply  a 
delicate  piece  of  machinery  that  ought  not  to  be  handled. 

"Q.     Is  there  any  danger  connected  with  it  at  all? 
"A.     Not  a  particle." 

Unless  there  was  no  proof  to  support  the  finding  of  fact, 
this  court  has  no  power  to  interfere.  The  foregoing  testi- 
mony affords  some  proof  of  the  facts  therein  found.  It  fol- 
lows, therefore,  that  the  exceptions  to  these  findings  must  be 
overruled. 

Several  legal  questions  are  raised  and  discussed  by  appel- 
lant. Most  of  them  rest  upon  the  assumption  that  the  forego- 
ing exceptions  are  well  taken.  The  exceptions  having  been 
overruled,  it  will  be  unnecessary  to  consider  them. 

A  further  question  is  raised  that  the  death  of  the  deceased 
was  caused  by  the  disease  diabetes.  This  was  a  question  of 
fact.  The  Board,  after  taking  the  proofs,  decided  that  this 
claim  was  not  established  by  the  evidence.  An  examination  of 
the  evidence  bearing  upon  that  question  convinces  us  that  there 
was  room  for  such  a  finding,  and  therefore,  it  must  be  regarded 
as  final.  In  connection  with  this  question,  another  one  is  raised, 
and  that  is  the  refusal  of  the  Board  to  allow  respondent  to  re- 
open the  proofs  after  the  day  set  for  the  hearing  to  permit  fur- 
ther expert  testimony  to  be  introduced  on  this  question.  The 
hearing  on  appeal  was  fixed  for  September  9th.  On  that  day 
claimant's  attorney  was  present  and  was  heard.  Kespondents 
did  not  appear,  they  evidently  relying  upon  certain  sugges- 
tions made  by  them  to  the  Board  for  an  adjournment.  The 
matter  was  then  held  open  until  October  8th.  On  that  day 
the  Board  gave  respondents  an  opportunity  to  be  heard,  but 
refused  to  allow  them  to  introduce  expert  testimony  because 


148  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

of  the  absence  of  claimant's  attorney,  and  further  refused  to 
allow  depositions  to  be  taken  in  Detroit  and  elsewhere,  be- 
cause of  the  added  expense  to  claimant  to  have  her  counsel 
present.  Section  11  of  part  3  of  the  law  gives  the  parties  the 
right  to  be  heard,  and  the  right  to  introduce  additional  tes- 
timony on  appeal.  This  right  was  given  to  them  on  Septem- 
ber 9th.  The  fact  that  appellants'  efforts  to  secure  an  ad- 
journment, proved  futile  on  September  9th,  did  not  make  it 
incumbent  on  the  Board  to  grant  further  time  in  which  to 
take  additional  testimony. 
We  think  the  determination  of  the  Board  should  be  affirmed. 


MARY  SPOONER, 

Applicant, 
vs. 
DETROIT  SATURDAY  NIGHT  COMPANY, 

Respondent. 

COURSE  OF  EMPLOYMENT — BY  WHOM  EMPLOYED — ARISING  OUT  OF. 

Decedent  was  employed  by  the  Winn  &  Hammond  Printing  Co.  as 
engineer.  The  plant  of  the  Detroit  Saturday  Night,  having  been 
injured  by  fire,  temporary  arrangements  were  made  with  the 
Winn  &  Hammond  Co.  for  the  use  of  their  plant  to  get  out  the 
paper.  Decedent  was  killed  while  running  an  elevator  during  the 
night  on  which  respondent  was  using  the  plant.  Respondent  con- 
tends that  decedent  was  not  in  its  employ  at  the  time  of  the  acci- 
dent, and  that  running  the  elevator  was  out  of  the  course  of  his 
regular  employment.  It  was  shown  that  respondents  entered 
into  a  contract,  part  of  which  stipulated  that  they  were  to  fur- 
nish a  competent  engineer  to  attend  to  the  engine  while  they  had 
the  use  of  the  plant.  They  did  in  fact  hire  a  man,  but  decedent 
insisted  that  he  do  the  work  himself,  as  he  did  not  want  any  one 
else  to  handle  his  engine.  This  arrangement  was  approved  by 
respondent. 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.       149 

HELD:  1.  That  Spooner's  work  for  Winn  &  Hammond  ceased  at 
five  o'clock  in  the  afternoon,  and  it  was  understood  and  agreed 
that  he  was  to  continue  as  engineer  that  night,  and  his  services 
were  to  be  paid  for  by  respondent,  and  this  under  the  circum- 
stances of  the  case  makes  him  an  employe  of  the  respondent. 

2.  That  he  was  engaged  at  the  time  of  the  accident  which 
caused  his  death  in  running  the  elevator  with  the  consent  of 
respondent's  foreman  who  was  riding  therein,  and  Spooner's  action 
in  running  the  elevator  must  therefore  be  held  to  be  within  the 
course  of  his  employment,  and  that  the  accident  causing  his  death 
arose  out  of  his  employment. 


Appeal  of  the  Detroit  Saturday  Night  from  the  decision  of 
an  arbitration  committee  awarding  compensation  to  Mary 
Bpooner  for  the  death  of  her  husband.  Affirmed. 


Opinion  by  the  Board: 

On  February  3,  1913,  respondent  entered  into  a  contract  for 
the  use  of  a  portion  of  the  plant  and  machinery  of  Winn  & 
Hammond  Company,  a  publishing  concern  of  the  City  of  De- 
troit, respondent's  plant  and  place  of  business  having  been 
rendered  untenantable  by  fire.  The  contract  is  in  writing  and 
was  made  between  the  Saturday  Night  Company  and  T.  H. 
Collins,  receiver  for  the  Winn  &  Hammond  Company,  and  pro- 
vides the  terms  and  compensation  for  the  use  of  machinery, 
power  and  appliances  in  the  plant  and  also  contains  the  fol- 
lowing proviso: 

"It  is  further  agreed  that  should  the  Detroit  Saturday  Night  Com- 
pany wish  to  operate  the  machinery  in  this  plant  at  any  time  other 
than  the  stated  working  hours  oj:  the  Winn  &  Hammond  Company 
which  are  7  a.  m.  to  11:30  a.  m.  and  12:15  p.  m.  to  5:00  p.  m.,  that 
the  charge  for  power  service  shall  be  $1  per  hour  in  addition  to  the 
prices  above  quoted  and  that  the  Detroit  Saturday  Night  Company 
agree  to  furnish  a  competent  engineer  to  tend  boiler  and  perform  such 
other  duties  as  usually  fall  to  a  man  in  that  capacity." 

The  Saturday  Night  Company  desired  to  operate  the  plant 
on  the  night  of  February  5th  to  get  out  its  paper  for  that 


150  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

week,  and  some  negotiations  were  had  between  the  representa- 
tives of  the  Saturday  Night  Company  and  Beceiver  Collins 
and  Mr.  Spooner,  who  was  the  regular  engineer  of  the  Winn 
&  Hammond  plant,  for  the  services  of  Mr.  Spooner  as  en- 
gineer that  night.  Objection  was  made  by  some  of  the  Winn 
&  Hammond  people  to  the  proposal  because  the  work  would  be 
too  much  for  Mr.  Spooner,  and  that  he  would  be  worn  out  and 
unable  to  do  his  work  properly  for  the  Winn  &  Hammond 
people  the  next  day.  Mr.  Williamson,  superintendent  for  the 
Saturday  Night  Company,  employed  a  man  by  the  name  of 
Leonard  J.  McCabe  as  engineer  for  that  night.  Time  and  a 
half  was  allowed  for  night  work  and  Spooner  it  seems  desired 
the  job  on  that  account,  and  it  is  claimed  that  he  was  opposed 
to  having  any  other  engineer  run  the  engine  lest  it  might  not 
be  handled  properly.  McCabe  came  to  the  plant  that  after- 
noon talked  with  Spooner  in  the  matter  and  left  because  the 
latter  told  him  that  he,  Spooner,  was  going  to  run  the  engine 
that  night.  It  is  claimed  on  the  part  of  the  applicant  that 
Spooner's  work  for  Winn  &  Hammond  Company  ceased  at  5 
o'clock  on  February  5th,  and  from  that  time  he  was  in  the 
employ  of  the  Saturday  Night  Company  until  he  met  his  death 
at  about  2  o'clock  in  the  morning  following.  It  is  further 
claimed  on  the  part  of  the  applicant  that  Mr.  Spooner  was 
hired  by  the  Saturday  Night  Company  as  engineer  and  that 
the  accident  which  resulted  in  his  death  arose  out  of  and  in 
the  course  of  his  employment. 

It  is  claimed  by  respondent  that  Spooner  was  not  in  the 
employ  of  the  Saturday  Night  Company,  but  was  there  sub- 
stantially as  a  volunteer  because  he  was  unwilling  to  have 
anyone  else  handle  his  engine,  and  that  Spooner  was  in  fact 
at  the  time  of  the  accident  in  the  employ  of  the  Winn  &  Ham- 
mond Company.  Kespondent  further  claims  that  the  work  of 
running  the  elevator,  at  which  Spooner  was  fatally  injured, 
was  entirely  outside  of  his  duties  as  engineer,  and  that  his  in- 
jury did  not  arise  out  of  or  in  the  course  of  his  employment. 
There  is  no  dispute  as  to  any  of  the  material  facts  in  the  case 
except  the  question  of  employment  of  Mr.  Spooner  as  engineer 


SPOONER  vs.'  DETROIT  SATURDAY  NIGHT  COMPANY.        151 

that  night.  The  place  and  manner  of  the  accident  are  undis- 
puted. The  sole  question  of  fact  in  dispute  is  whether  or  not 
Spooner  that  night  was  working  as  an  employe  of  the  Detroit 
Saturday  Night  Company. 

Death  having  sealed  Spooner's  lips,  the  disputed  fact  must 
be  determined  from  the  testimony  of  others  and  from  infer- 
ences that  miay  be  drawn  from  established  facts  and  condi- 
tions. 

It  is  undisputed  that  Winn  &  Hammond  Company  ceased 
work  in  the  plant  at  5  o'clock  in  the  afternoon  of  February 
5th ;  that  the  plant  was  operated  that  night  by  the  respondent 
in  getting  out  its  paper;  that  Mr.  Spooner  was  working  that 
night  running  the  engine  which  furnished  power  and  light  for 
the  respondent;  that  the  plant  could  not  run  and  respondent's 
work  could  not  be  done  without  an  engineer  and  the  operation 
of  the  engine ;  and  that  Spooner  was  engaged  in  run- 
ning the  engine  with  the  knowledge  and  approval  of  and 
pursuant  to  some  arrangement  with  respondent.  The  duty 
of  respondent  to  furnish  an  engineer  is  fixed  by  the  written 
contract  above  referred  to,  and  it  is  conceded  that  respondent 
expected  to  pay  for  Spooner's  services  as  engineer  that  night, 
the  claim  of  respondent  being  that  Spooner  was  to  act  as  en- 
gineer that  night  through  an  arrangement  made  with  Receiver 
Collins  of  the  Winn  &  Hammond  Company,  who  was  Spoon- 
er's regular  employer.  The  precise  claim  as  made  by  respond- 
ent is  that  it  was  understood  that  Spooner  was  to  work  as  en- 
gineer that  night,  that  Receiver  Collins  would  "bill  respond- 
ent for  him,"  and  that  respondent  would  pay  the  bill  for  the 
services  of  Spooner  as  such  engineer,  such  payment  to  be  made 
to  Receiver  Collins  of  the  Winn  &  Hammond  Company.  On 
the  other  hand,  it  is  claimed'  by  the  applicant  that  Spooner 
was  employed  as  such  engineer  for  the  night  in  question  di- 
rectly by  respondent  and  was  to  be  paid  time  and  a  half  for 
his  work,  which  would  amount  to  approximately  |5.20.  It  is 
not  disputed  by  respondent  that  this  amount  was  to  be  paid 
for  the  services  of  Spooner  that  night,  respondents'  claim  be- 
ing that  such  payment  should  be  made  to  Collins  as  receiver, 


152  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

and  that  by  reason  of  such  arrangement  Spooner  was  in  fact 
in  the  employ  of  Winn  &  Hammond  Company  at  the  time  he 
met  his  death.  There  is  a  sharp  conflict  of  evidence  in  rela- 
tion to  the  hiring  of  Spooner  for  the  night  in  question  between 
the  witnesses  of  the  applicant  and  the  respondent,  but  from 
a  careful  examination  of  all  the  proofs  the  Board  has  reached 
the  conclusion  and  finds  as  a  matter  of  fact  that  Spooner,  at 
the  time  of  his  death,  was  working  as  an  employe  of  respond- 
ent. 

The  engine  which  Mr.  Spooner  was  engaged  in  operating 
was  located -in  the  basement  of  the  building,  and  the  place 
where  he  met  his  death  was  in  the  elevator  between  the  third 
and  fourth  floors  of  the  building.  It  appears  that  it  was  not 
necessary  for  Spooner  to  remain  in  the  basement  with  the  en- 
gine all  of  the  time,  and  he  came  to  the  floor  above  where  re- 
spondent's employes  were  folding  papers  and  putting  in  the 
inserts.  Mr.  Loeffelbein,  foreman  of  the  press  room,  was  the 
man  charged  with  getting  out  the  work,  and  was  in  charge 
of  the  work  at  that  time,  respondent's  superintendent  being 
away.  Loeffelbein  and  others  desired  to  get  some  stools  that 
were  located  on  the  fourth  floor  of  the  building  to  use  in 
their  work  of  folding.  There  were  no  lights  on  the  stairways 
or  on  the  fourth  floor,  and  Spooner  proposed  to  run  the  men 
up  to  the  fourth  floor  in  the  elevator,  which  he  had  been  accus- 
tomed to  run  at  times  in  connection  with  his  work  as  engineer. 
Loeffelbein  an.d  two  other  foremen  of  respondent  thereupon 
got  into  the  elevator  with  Spooner.  Spooner  started  the  ele- 
vator and  while  ascending  to  the  fourth  floor  was  caught  in 
the  gate  or  some  other  way  and  crushed  to  death.  There  was 
no  light  in  the  elevator  and  those  with  him  could  not  tell  just 
how  the  accident  happened.  ^Respondent  contends  that  run- 
ning the  elevator  in  question  was  outside  of  the  course  of 
Spooner's  employment,  and  that  the  accident  which  caused 
his  death  did  not  arise  out  of  his  employment. 

The  employes  of  the  Saturday  Night  Company  were  not 
familiar  with  the  building,  having  moved  into  it  in  an  emerg- 
ency caused  by  fire;  while  on  the  other  hand,  Spooner  was 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.       153 

familiar  with  the  plant  and  had  been  accustomed  to  run  the 
elevator  frequently  during  his  long  employment  with  Winn  & 
Hammond  Company.  It  was  but  natural  under  those  circum- 
stances that  Spooner  should  volunteer  to  run  the  elevator  up 
to  the  fourth  boor  w^ith  Loeffelbein  and  Hussey  and  Wheeler, 
two  other  foremen  of  respondent,  to  get  the  stools  that  were 
wanted.  The  stools  were  to  be  used  in  doing  the  work  of  fold- 
ing and  putting  in  inserts,  and  the  proposal  of  Spooner  to  run 
the  elevator  to  the  upper  floor  seems  to  be  in  the  nature  of  a 
suggestion  from  him,  which  respondent's  foreman  might  either 
have  accepted  or  declined.  Loeffelbein  was  foreman  of  the 
pressroom  and  had  charge  of  getting  out  the  work  that  night, 
and  in  the  absence  of  respondent's  superintendent,  Loeffel- 
bein was  Spooner's  immediate  superior.  Also,  Spooner  might 
naturally  be  expected  to  be  governed  by  the  orders  and  wishes 
of  the  other  two  foremen  of  respondent  who  went  with  him 
and  Loeffelbein  on  the  fatal  elevator  trip.  The  acquiescence  of 
Loeffelbein  and  the  other  two  foremen  in  Spooners'  proposal 
to  run  the  elevator  for  them  and  their  approval  of  his  action 
in  so  doing  had  the  effect  of  placing  Spooner  in  the  same  posi- 
tion as  if  he  had  been  ordered  by  his  foreman  to  run  the  eleva- 
tor on  this  trip.  He  was  merely  doing  what  any  helpful  man 
accustomed  to  run  the  elevator  would  have  done  under  the 
circumstances,  and  was  trying  to  further  the  business  and 
work  of  his  employer.  In  the  opinion  of  the  Board  the  injury 
arose  out  of  and  in  the  course  of  his  employment  and  the 
award  of  the  arbitration  committee  is  affirmed. 


154  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


The  Spooner  case  was  appealed  to  the  Supreme  Court  and 
reversed,  the  court  holding  that  Mr.  Spooner  was  outside  of 
the  course  of  his  employment  at  the  time  of  the  accident 
which  resulted  in  his  death.  The  full  opinion  of  the  Supreme 
Court  is  here  given: 


SUPREME  COUKT. 
MARY  SPOONER, 

Claimant  and  Appellee, 
vs. 

DETROIT  SATURDAY  NIGHT  COMPANY, 
Defendant  and  Appellant. 

ACTS  OUTSIDE  OF  COURSE  OF  EMPLOYMENT. 

Claimant's  decedent  was  a  stationary  engineer  in  charge  of  the  en- 
gine and  dynamo  in  a  plant  leased  by  defendant  company.  Late 
at  night  while  so  employed  he  went  to  the  first  floor  of  the  build- 
ing and  there  met  some  of  defendant's  employes  and  upon  their 
signifying  an  intention  of  going  to  an  upper  floor  of  the  building, 
he  volunteered  his  services  to  take  them  up  on  the  elevator. 
While  doing  this  he  met  with  the  injury  which  resulted  in  his 
death. 

HELD:  The  act  was  one  outside  of  the  course  of  the  employment 
and  for  which  no  liability  would  attach  to  defendant  under  the 
workmen's  compensation  law. 


Certiorari  to  the  Industrial  Accident  Board  to  review  an 
award  of  said  Board  to  Mary  Spooner,  as  against  the  Detroit 
Saturday  Night  Company.  Reversed. 

Beaumont,,  Smith  &  Hams,  of  Detroit,  for  claimant. 
McGregor  <G  Bloomer;  (William  L.  Carpenter,  of  counsel), 
all  of  Detroit,  for  defendant  and  appellant. 

STONED  J.  This  is  a  claim  made  by  Mary  Spooner  widow 
of  James  Spooner,  against  the  Detroit  Saturday  Night  Com- 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.        155 

pany,  for  compensation  for  the  death  of  her  husband,  under 
Act  No.  10,  Public  Acts  of  1912,  known  as  the  Workmen's 
Compensation  Act. 

The  Detroit  Saturday  Night  Company,  having  previously 
suffered  a  fire  in  its  plant  in  the  city  of  Detroit,  on  Monday, 
February  3,  1913,  entered  into  a  contract  with  the  Winn  & 
Hammond  Company,  through  T.  H.  Collins,  its  receiver,  as 
follows : 

"Detroit,  Mich.,  Monday,  February  3,  1913. 

"Agreement  between  T.  H.  Collins,  Receiver  for  Winn  &  Hammond 
Company  and  the  Detroit  Saturday  Night  Company,  City  of  Detroit, 
State  of  Michigan  and  County  of  Wayne  on  the  3rd  day  of  February, 
1913. 

"I  agree  for  such  a  period  as  the  said  Winn  &  Hammond  Company 
shall  be  under  my  control  and  until  such  time  as  twenty-four  hours' 
notice  shall  be  given  to  the  Detroit  Saturday  Night  Company  to  fur- 
nish the  following  equipment  and  power  for  same  at  the  prices  and 
under  the  conditions  named  in  this  instrument;  Cylinder  press  at  75 
cents  per  hour;  Gordon  press  at  33 y3  cents  per  hour;  Power  cutting 
machine  at  50  cents  per  hour;  Stitching  machine  at  50  cents  per 
hour;  Folding  machine  at  50  cents  per  hour;  perforator  at  50  cents 
per  hour;  the  use  of  type,  tones  and  material  necessary  for  composi- 
tion work  at  $3.00  per  day. 

"I  also  agree  to  furnish  elevator  service,  telephone  service  and 
office  service  which  shall  consist  of  providing  cards  and  keeping  time 
of  such  employes  as  the  said  Detroit  Saturday  Night  Company  may 
assign  to  this  plant  for  operating  machinery  rented  to  them  at  the 
rate  of  $10.00  per  week. 

"It  is  further  understood  and  agreed  between  both  parties  that  no 
type  or  other  material  shall  be  removed  from  the  plant  of  the  Winn  & 
Hammond  Company  by  the  said  Detroit  Saturday  Night  Company. 

"It  is  further  agreed  that  should  the  Detroit  Saturday  Night  Com- 
pany wish  to  operate  the  machinery  in  this  plant  at  any  time  other 
than  the  stated  working  hours  of  the  Winn  &  Hammond  Company, 
which  are  7  A.  M.  to  11:30  A.  M.  and  12:15  P.  M.  to  5  P.  M.,  that  the 
charge  for  power  service  shall  be  $1.00  per  hour  in  addition  to  the 
prices  above  quoted  and  that  the  Detroit  Saturday  Night  Company 
agree  to  furnish  a  competent  engineer  to  tend  boiler"  and  perform  such 
other  duties  as  usually  fall  to  a  man  in  that  capacity. 

"It  shall  be  optional  with  the  Detroit  Saturday  Night  Company 
how  much  of  this  machinery  they  shall  operate  and  they  agree  to  give 
ample  notice  when  any  additional  machinery  shall  be  wanted  or 
discontinued. 


156  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"The  said  Detroit  Saturday  Night  Company  further  agrees  to  abide 
by  and  perform  any  and  all  orders  of  the  bankruptcy  court  concern- 
ing its  occupancy  and  use  of  said  property. 

Signed:     H.  H.  Nimmo, 
Vice-Pres.  Detroit  Saturday  Night   Co. 

Signed:     Winn  &  Hammond  Co. 
Approved:   Lee  E.  Joslyn,  Referee.  Per  T.  H.  Collins." 

The  Detroit  Saturday  Night  Company,  in  accordance  with 
the  terms  of  the  foregoing  contract,  employed  an  engineer  by 
the  name  of  Leonard  J.  McCabe  to  operate  the  engine  in  said 
plant,  on  the  night  of  February  6,  1913,  that  being  the  first 
night  that  said  company  operated  said  plant.  This  engineer 
was  employed  on  Wednesday,  February  5th.  He  went  to  the 
plant  of  the  Winn  &  Hammond  Company  on  Wednesday,  Feb- 
ruary 5th,  to  look  over  the  plant  preparatory  to  taking  charge 
of  it  on  the  night  of  February  6th.  On  this  occasion  he  told 
James  Spooner,  then  in  charge  of  the  plant,  that  he  was  going 
to  take  charge  of  the  same  on  Thursday  night,  February  6th. 
On  Thursday,  February  6th,  at  about  five  o'clock,  McCabe 
went  to  the  plant  for  the  purpose  of  taking  charge  that  night. 
He  saw  Spooner,  and  the  latter  objected  and  desired,  himself, 
to  operate  the  engine.  McCabe  testified  that  Spooner  told 
him  that  they  were  going  to  run  about  nine  o'clock ;  and  that 
he,  Spooner,  would  run  himself  that  night,  and  it  was  not  nec- 
essary for  McCabe  to  stay.  McCabe  then  went  away  and 
Spooner  did  actually  operate  the  engine  in  said  plant  on  the 
night  of  February  6,  1913. 

James  Spooner,  husband  of  claimant,  was  a  stationary  en- 
gineer in  the  employ  of  the  Winn  &  Hammond  Company,  and 
had  been  in  its  employ  as  such  stationary  engineer  for  a  per- 
iod of  twenty  years,  or  more,  prior  to  said  February  6th.  His 
duties  were  to  run  the  engine  and  dynamo  in  the  plant.  It 
was  not  a  part  of  his  duties  to  run  the  elevator,  but  he  some- 
times did  so  for  his  own  convenience  as  did  other  employes, 
in  the  absence  of  the  regular  elevator  man,  or  when  requested 
by  the  employer  in  furthering  its  work.  On  the  night  in  ques- 
tion, or  about  two  o'clock  in  the  morning  of  February  7th, 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.        157 

said  James  Spooner  left  his  place  of  duty  in  the  engine  room 
in  the  basement  of  said  plant  and  went  to  the  upper  floors  of 
said  building.  In  going  to  said  upper  floors  he  walked  up  the 
stairway.  Upon  the  second  floor  he  met  Otto  Loeffelbein, 
John  C.  Hussey  and  a  Mr.  Wheeler,  employes  of  the  Detroit 
Saturday  Night  Company,  and  stopped  with  them  and  had  a 
casual  conversation.  Shortly  after  James  Spooner  came  upon 
said  second  floor  said  Hussey  and  the  others  started  to  go  up 
the  stairway  from  the  second  to  the  third  floor  of  said  build- 
ing for  the  purpose  of  getting  some  stools  to  sit  upon  at  their 
work ;  and  thereupon  said  James  Spooner  offered  to  take  them 
up  on  the  elevator,  saying:  "What's  the  use  of  your  walking, 
ride  up."  And  said  Spooner  did  then  and  there  open  the  door 
of  the  elevator  which  .stood  there,  and  the  said  employes  got 
upon  the  same  and  Spooner  operated  it  in  such  a  manner  as 
to  cause  it  to  ascend.  The  elevator  passed  one  floor  in  safety, 
and  just  as  it  was  passing  the  next  floor  James  Spooner  re- 
ceived the  injuries  which  caused  his  death.  There  was  no 
light  whatever  upon  the  elevator  and  the  men  upon  it  were  un- 
able to  tell  the  cause  of  the  accident  from  which  Spooner  suf- 
fered the  injuries  which  caused  his  death. 

The  claimant  made  demand  upon  the  appellant  for  payment 
to  her  of  compensation  because  of  the  death  of  said  James 
Spooner,  under  the  terms  of  said  Act.  The  appellant  denied 
all  liability  to  said  Mary  Spooner  under  said  Act.  ,An  arbi- 
tration was  had  under  the  Act,  and  the  Committee  of  Arbi- 
tration aAvarded  said  Mary  Spooner  the  sum  of  $2,520.  The 
appellant  filed  a  claim  of  review  of  the  decision  of  said  com- 
mittee with  the  Industrial  Accident  Board,  and  said  decision 
of  said  committee  was  duly  reviewed  by  said  Industrial  Ac- 
cident Board,  and  on  June  10,' 1913,  said  board  made  a  deci- 
sion affirming  the  decision  of  said  Arbitration  Committee.  The 
case  is  here  for  review  upon  certiorari. 

The  appellant  insists  that  it  did  not  make  any  contract, 
express  or  implied,  of  employment  with  said  James  Spooner, 
and  that  in  his  operation  of  said  engine,  on  the  night  of  Feb- 
ruary 6,  1913,  he  was  acting  as  the  employe  of  Winn  &  Ham- 


158  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

mond  Company,  and  not  as  the  employe  of  the  Detroit  Satur- 
day Night. 

The  Industrial  Accident  Board,  in  its  fourth  finding  of  fact, 
found  as  follows: 

"Mr.  Spooner  was  engaged  in  operating  the  engine  in  the  plant  for 
Winn  &  Hammond  Co.  until  five  o'clock  in  the  afternoon  of  February 
6,  and  from  that  hour  until  he  met  his  death,  at  about  two  o'clock 
in  the  morning  of  February  7,  he  was  in  the  employ  of  the  Detroit 
Saturday  Night  Company,  being  engaged  that  night  in  operating  the 
plant  as  engineer  in  getting  out  its  paper;  and  that  Spooner  at  the 
time  of  the  accident  was  in  fact  an  employe  of  the  Detroit  Saturday 
Night." 

It  is  the  claim  of  appellant  that  there  was  no  evidence  what- 
ever to  support  this  finding  of  fact.  The  said  Industrial  Ac- 
cident Board  found,  as  matter  of  law,  that  the  injury  received 
by  said  James  Spooner,  and  which  caused  his  death,  arose  out 
of  and  in  the  course  of  his  employment  by  the  Detroit  Satur- 
day Night  Company;  and  that  said  employment  was  not  a 
casual  employment  within  the  meaning  of  said  Act,  so  as  to 
debar  Mary  Spooner  from  recovering  compensation  for  the 
death  of  James  Spooner. 

By  appropriate  assignments  of  error  the  following  proposi- 
tions are  presented  by  the  appellant: 

1.  That  Spooner  was  not  an  employe  of  the  Detroit  Sat- 
urday Night  Company  as  matter  of  law. 

2.  That  the  injuries  did  not  arise  out  of  and  in  the  course 
of  his  employment. 

3.  That  if  Spooner  was  an  employe  of  the  Detroit  Safurday 
Night  Company,  his  employment  was  a  casual  employment. 

(1)  On  the  first  proposition  urged  by  appellant,  a  care- 
ful reading  of  the  evidence  contained  in  this  record  leacls  us 
to  the  conclusion  that  we  cannot  say  there  was  no  evidence  to 
support  the  finding  that  Spooner  was  an  employe  of  the  De- 
troit Saturday  Night  Company.  Under  the  statute,  as  con- 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.        159 

strued  by  this  court,  if  there  was  evidence  to  support  the 
finding,  we  will  not  review  or  weigh  that  evidence.  Rayner  v. 
Sligh  Furniture  Co.,  180  Mich.,  168.  We  think  there  was  some 
evidence  in  support  of  this  finding. 

(2)  Did  the  injuries  arise  out  of  and  in  the  course  of  his 
employment? 

The  appellant  needed,  and  had  employed  an  engineer  to 
operate  the  engine  and  dynamo  upon  the  night  in  question.  It 
was  not  concerned  with,  and  did  not  need  the  use  of  the  eleva- 
tor. As  matter  of  fact,  the  agreement  had  provided  that  the 
Winn  &  Hammond  Company  was  to  furnish  the  elevator  ser- 
vice, but  no  such  service  was  needed  by  appellant  that  night. 
If  we  are  right  in  saying,  under  the  first  proposition,  that 
there  was  evidence  that  Spooner  was  in  the  employ  of  the  ap- 
pellant, that  employment  was  solely  to  operate  the  "engine  and 
dynamo.  The  evidence  is  silent  as  to  any  other  duty  imposed 
upon  him  by  the  appellant.  The  eugineroom  was  located  in 
the  basement  of  the  building;  and  so  far  as  this  record  shows 
Spooner  had  no  occasion  to  leave  it,  and  had  no  duty  to  per- 
form upon  the  upper  floors  of  the  building  during  the  night 
of  the  injury.  Under  the  evidence  he  had  gone  upon  these 
upper  floors  purely  and  solely  to  visit  with  the  men  working 
there.  The  evidence  is  undisputed  that  he  walked  up  the  stair- 
way. He  owed  no  duty  to  those  men,  or  to  anybody,  to  take 
them  to  the  upper  floors  upon  the  elevator;  neither  was  he  re- 
quested to  do  so.  It  was  doubtless  a  friendly  act  upon  his 
part,  which  did  not  tend  to  further  the  business  of  appellant. 
At  the  time  of  the  injury  we  think  that  he  was  engaged  in  an 
act  outside  of,  and  not  in  the  course  of  his  employment,  and 
the  injuries  he  received  and  which  caused  his  death,  did  not 
arise  out  of  and  in  the  course  of  his  employment.  The  eleva- 
tor shaft  was  in  pitch  darkness,  by  the  undisputed  evidence, 
and  in  using  it  he  not  only  risked  his  own  life,  but  that  of  the 
men  he  took  upon  the  elevator  with  him.  Had  he  remained  in 
the  place  where  his  duties  called  him  and  attended  to  those 
duties,  he  would  not  have  been  injured,  so  far  as  this  record 
shows.  The  material  question  is  not  what  he  had  done  at 


160 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


times,  for  his  own  convenience  or  otherwise,  while  in  the  em- 
ploy of  Winn  &  Hammond  Company,  but  the  pertinent  ques- 
tion is:  What  was  he  employed  to  do  upon  this  night?  Mani- 
festly, to  run  and  care  for  the  engine  and  dynamo.  This  in- 
jury occurred  while  he  was  away  from  his  work,  and  while 
he  was  a  voluntary  visitor  to  the  employes  of  the  appellant, 
and  the  act  was  for  his  own  pleasure  or  satisfaction. 

Counsel  for  appellee  in  support  of  their  claim  have  called 
our  attention  to  the  case  of  Miner  v.  Franklin  County  Tele- 
phone Co.,  (Vt.)  75  Atl.  K.,  653.  In  that  case  the  plaintiff 
was  an  employe  of  the  defendant  Telephone  Company.  On  the 
day  of  the  accident  defendant's  foreman  said  to  the  linemen, 
of  which  the  plaintiff  was  one,  that  they  would  go  down  and 
splice  the  cable  at  a  certain  point,  and  all  went  together  to 
the  place.  On  arriving  there  the  foreman  told  the  plaintiff 
and  another  lineman  to  go  to  a  certain  place  and  get  a  ladder. 
They  were  unable  to  get  it,  and  the  plaintiff  so  reported  to 
the  foreman  on  their  return.  The  foreman  was  then  on  the 
cable  seat,  with  his  materials  at  hand,  and  was  just  commenc- 
ing the  work  of  splicing.  After  watching  him  awhile,  the 
plaintiff  said  he  guessed  he  would  go  up  and  help  him,  and 
received  no  reply.  The  plaintiff  then  ascended  the  pole  and 
stood  on  an  upper  crossarm  and  handed  the  sleeves  to  the 
foreman  as  he  needed  them,  the  foreman  taking  them  from 
him  and  using  them  as  he  proceeded  with  the  splicing.  After 
working  in  this  manner  for  about  twenty  minutes,  the  fore- 
man placed  the  bag  containing  the  sleeves  on  the  other  side  of 
him,  which  put  them  beyond  the  plaintiff's  reach;  and  after 
looking  on  awhile  the  plaintiff  said  he  would  go  down,  and 
proceeded  to  do  so,  receiving  therein  the  injury  complained  of. 
These  were  the  circumstances  tending  to  show  that  the  plain- 
tiff was  in  the  performance  of  his  duty  when  he  received  the 
injury.  In  deciding  the  case  for  the  plaintiff  the  court  said  : 

"The  voluntary  offer  of  a  willing  servant  to  make  himself  useful  in 
a  matter  not  covered  by  any  express  command,  when  the  proffered 
service  is  accepted  by  his  superior,  although  not  by  an  approval  ex- 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.        161 

pressed  in  words,  cannot  be  said  as  matter  of  law  to  put  the  servant 
outside  the  limits  of  his  employment." 

We  think  the  case  readily  distinguishable  from  the  instant 
case.  In  fact  it  might  be  said  the  plaintiff  there  was  in  the 
performance  of,  and  carrying  on  the  very  work  for  which  he 
was  employed,  to  wit:  He  was  assisting  his  foreman,  who  un- 
doubtedly represented  the  master.  In  the  instant  case  Spoon- 
er  was  rendering  no  service  which  was  either  accepted  by,  or 
known  to  his  superior,  but  was  engaged  in  a  voluntary,  friend- 
ly act  entirely  outside  the  scope  of  his  employment  upon  the 
night  in  question. 

Our  attention  is  also  called  by  appellee  to  the  case  of  Mc- 
Quibban  v.  Menzies,  37  Scottish  Law  R.,  page  526.  In  that 
case  a  workman  was  engaged  as  a  laborer  in  a  steam-joinery, 
his  duty  being  to  carry  wood  from  the  machine-men  to  the 
joiners  and  to  clean  and  sweep  up  the  floor  of  the  machine- 
room.  A  belt  in  connection  with  one  of  the  machines  became 
loose,  and  he  went,  without  being  asked  so  to  do,  to  assist 
the  machine-man  in  replacing  the  belt  upon  the  shaft.  At  the 
request  of  the  machine-man  the  workman  ascended  a  ladder  to 
try  and  replace  the  belt,  and  his  arm  being  caught  in  the 
belt  he  was  drawn  up  into  the  shaft  and  received  fatal  in- 
juries. It  was  admitted  that  had  a  foreman  been  present  he 
might  have  ordered  the  workman  to  do  this  act,  but  no  other 
person  had  authority  to  order  him  to  do  so.  Held,  that  the 
accident  was  one  arising  out  of  and  in  the  course  of  his  em- 
ployment, in  the  sense  of  the  Workmen's  Compensation  Act. 
The  court  said: 

"The  question  of  law  which  we  have  to  decide  is  whether  the  de- 
ceased workman  was  injured  by  an  accident  arising  out  of  and  in 
the  course  of  his  employment,  and  although  that  would  appear  pri- 
marily to  be  a  question  of  fact,  there  is  no  doubt  that  in  cases  of 
this  kind  questions  of  fact  and  law  sometimes  run  into  one  another. 
The  words  'arising  out  of  and  in  the  course  of  the  employment'  ap- 
pear to  me  to  be  sufficient  to  include  something  which  occurs  while 
the  workman  is  in  his  master's  employment  and  on  his  master's 
work,  although  he  is  doing  something  in  the  interest  of  his  master 
21 


162  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

beyond  the  scope  of  what  he  was  employed  to  do.  The  Act  does 
not  say,  'when  doing  the  work  which  he  was  employed  to  perform,' 
but  it  is  a  fair  inference  that  if  it  had  been  intended  to  limit  the 
right  to  compensation  to  such  accidents,  different  language  would  have 
been  used  from  that  which  occurs  in  the  Act.  It  must  be  assumed,, 
therefore,  that  the  Legislature  used  language  of  wider  scope  to  in- 
clude cases  where  a  workman  intervenes  to  do  something  useful  and 
helpful  to  his  master,  although  outside  the  special  duties  which  he 
employed  to  perform." 

After  citing  cases,  the  court  concluded: 

"The  action  of  the  workman  in  this  case  appears  to  me  to 
been  a  natural  and  helpful  intervention  in  the  conduct  of  his  master's 
business,  and  accordingly  I  am  of  the  opinion  that  the  question  shouk 
be  answered  in  the  affirmative." 


01 

-. 


Here  also  it  clearly  appeared  that  the  servant  was .  doin 
something  in  the  interest  of  his  master,  or  in  the  language  of 
the  opinion,   "something  useful  and  helpful   to   his  master. 
Such  was  not  the  fact  in  the  instant  case,  as  we  have  alrea 
stated. 

Our  attention  is  also  called  to  language  used  by  Ruegg  in 
his  work  on  Employers'  Liability  and  Workmen's  Compensa- 
tion, at  page  346,  where  that  author  says: 

"The  words  'arising  out  of  the  employment'  may  be  satisfied  if  it 
is  shown  that  the  occupation  in  which  the  workman  was  engaged, 
though  not  strictly  part  of  his  duties,  was  being  done  in  the  mutual 
interest  of  the  employer  himself."  Citing  cases. 


Here  the  same  distinction  is  made  which  we  have  pointed 
out  above.  The  case  of  McQuibban  v.  Menzies,  supra,  has  been 
referred  to  an  "Emergency  Case."  Such  cases  seem  to  be 
exception  to  the  general  rule  where  a  workman,  for  the  pi 
tection  of  his  master's  interest,  acts  in  an  emergency.  Mai 
festly,  there  was  no  emergency  in  the  instant  case. 

We  are  of  opinion  that  the  cases  cited  by  appellant'  are  ap- 
plicable to  the  instant  case,  although  the  contrary  is  claimed 
by  appellee.  Smith  v.  Lancashire  &  Yorkshire  Kwy.,  1  Q. 
Div.,  (Law  Reports  1899)  141. 


SPOONER  vs.  DETROIT  SATURDAY  NIGHT  COMPANY.        163 

In  that  case  a  ticket  taker  in  the  employ  of  the  railway, 
after  he  had  collected  his  tickets  from  a  train,  got  upon  the 
footboard  of  the  train  after  it  had  started,  to  speak  to  a  wom- 
an passenger,  and  was  injured.  It  was  held  that  the  accident 
was  not  one  arising  out  of  and  in  the  course  of  his  employ- 
ment. This  case  was  disposed  of  upon  the  principle  that  where 
the  workman  is  doing  an  act  entirely  for  his  own  purposes, 
and  in  no  way,  either  directly  or  indirectly,  in  the  interest 
of  his  employer,  then,  however  harmless  such  act  may  be,  he 
loses  the  protection  of  the  Act  whilst  he  is  so  engaged.  The 
court  said: 

"It  is  not  that  he  violated  a  rule,  but  that  the  accident  did  not 
arise  out  of  or  take  place  in  the  course  of  his  employment  at  all. 
It  took  place  while  for  the  moment  he  quitted  his  employment." 

In  Moore  v.  Manchester  Lines,  Ltd.,  1  K.  B.  417,  a  fireman 
left  the  ship  and  went  ashore  to  procure  articles  which  were 
necessary  for  his  own  convenience  and  comfort.  On  return- 
ing he  fell  from  a  ladder  fastened  to  the  ship's  side  and  rest- 
ing on  the  quay  below.  This  was  the  only  means  of  access  to 
the  ship.  In  giving  judgment  reversing  the  County  Court 
judge  who  had  awarded  compensation,  Cozens-Hardy,  M.  R., 
said: 

"It  seems  to  me  he  (the  seaman)  was  outside  the  protection  given 
by  the  Act  from  the  moment  he  left  the  ship  until  he  got  back  on  the 
ship."  See  also 

Lowe  v.  Pearson,  1  Q.  B.  Div.,  (Law  R.  1899)  261; 

Reed  v.  Gt.  Western  Railway,  (1909)   2  Butterworth's  W.  C.  C.,  109. 

Of  this  case  Mr.  Reugg  says: 

"It  is  a  decision  of  the  House  of  Lords,  and  may  be  said  to  estab- 
lish finally  the  principle  propounded  in  the  first  decision  given  on 
the  words,  namely  Smith  v.  Lancashire  &  Yorkshire  Railway  Com- 
pany, supra.  This  principle  is  that  where  the  workman  is  doing  an 
act  entirely  for  his  own  purposes,  and  in  no  way,  either  directly  or 
indirectly,  in  the  interest  of  his  employer,  then,  however  harmless  such 
an  act  may  be,  he  loses  the  protection  of  the  Act  whilst  he  is  so  en- 
gaged." 


164  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Many  other  cases  might  be  cited  to  the  same  effect. 

We  are  of  opinion  that  there  was  no  evidence  to  support  the 
conclusion  that  the  injury  arose  out  of  and  in  the  course  of 
Spooner's  employment,  and  for  that  reason  appellant  is  under 
no  liability  to  the  claimant  in  this  case.  This  conclusion 
renders  it  unnecessary  for  us  to  consider  the  third  proposition. 
The  decision  of  the  Industrial  .Accident  Board  is  therefore  re- 
versed. 


ROSE  PAPINAW, 

Applicant, 
vs. 
GRAND  TRUNK  RAILWAY  COMPANY. 

Resopndent. 

INJURIES  IN   THE   COURSE   OF  EMPLOYMENT — CIRCUMSTANTIAL  EVIDENCE 
TO  SHOW. 

Alfred  Papinaw,  a  section  foreman  in  the  employ  of  respondent, 
started  from  his  home  about  6:30  o'clock  in  the  evening  to  mail 
his  bi-weekly  pay-roll  and  report  to  the  company's  Detroit  office. 
He  went  along  the  tracks  of  the  company  where  the  employes  of 
the  road  were  accustomed  to  travel  and  where  his  duties  in 
looking  after  the  track  required  him  to  be  a  portion  of  the  time. 
That  he  reached  the  mailing  station  is  shown  by  the  fact  that 
the  pay-roll  and  report  were  received  at  the  company's  office  the 
following  morning.  He  was  not  seen  after  the  time  that  he 
started  out  to  mail  the  pay-roll.  About  midnight  his  body  was 
found  on  respondent's  tracks  cut  to  pieces,  portions  of  it  being 
frozen  to  the  rails.  The  night  was  dark  and  stormy,  and  his 
body  was  found  at  a  place  where  he  might  naturally  have  been 

.   .         accidentally    run    down    on    his    way    home    from    the    mailing 
station. 

HELD:  That  the  facts  and  circumstances  justified  and  required 
the  inference  that  Mr.  Papinaw  was  run  down  while  in  the  dis- 


ROSE  PAPINAW  vs.   GRAND   TRUNK  RAILWAY  CO.         165 

charge  of  his  duties  and  that  the  accident  arose  out  of  and  in 
the  course  of  his  employment. 


Opinion  by  the  Board: 

Decedent  was  employed  at  Port  Huron  by  the  Grand  Trunk 
llailway  Company  of  Canada  as  a  section  foreman  in  charge 
of  Section  No.  29,  extending  from  mile  post  50  to  60  and  was 
engaged  in  the  daily  duties  of  a  section  foreman  from  about 
7  o'clock  in  the  morning  until  5 :30  or  6  o'clock  (local  time)  in 
the  evening,  the  time  varying  with  the  season  of  the  year.  It 
was  also  his  duty  to  patrol  the  track  Sunday  mornings;  to 
keep  lighted  a  yard  interlocking  light  during  the  night,  even 
to  the  extent  of  relighting  it  in  case  it  went"  out  during  the 
night;  he  was  subject  to  be  called  out  at  any  time  of  the  night 
in  case  of  a  wreck  and  to  keep  the  switches  clean  in  event  of  a 
storm.  He  had  to  keep  the  time  of  those  in  his  gang  and  make 
out  the  pay-roll  and  time  sheets  at  his  home  and  mail  the  same 
at  the  Tunnel  Depot,  to  the  respondent's  superintendent,  for 
the  first  half  of  the  month  in  time  to  reach  the  Detroit  office  not 
later  than  the  morning  of  the  14th,  and  for  the  last  half  of  the 
month  not  later  than  the  last  day  of  each  month.  His  average 
weekly  wage  was  $14.82.  His  gang  consisted  of  three  men 
besides  himself.  Decedent  was  furnished  by  respondent  with 
blank  forms  upon  which  to  make  out  such  pay-roll. 

At  the  time  of  the  accident,  January  30,  1914,  the  decedent 
was  being  paid  a  monthly  wage  of  $62.50  the  same  to  cover 
whatever  services  he  rendered  throughout  the  month,  while 
the  section  hands  who  worked  with  him  were  paid  a  daily 
wage.  He  received  no  overtime  for  attending  to  the  pay-roll 
and  time  sheets,  this  being  a  part  of  the  general  service  for 
which  he  received  the  above  monthly  salary. 

Decedent  resided  near  Tappan  Junction  on  what  is  called 
the  Junction  Road,  about  1%  miles  west  of  the  Tunnel  De- 
pot, which  is  respondent's  main  depot  at  Port  Huron,  and 
about  150  feet  north  of  respondent's  main  west-bound  line. 
Griswold  Street  runs  east  and  west  along  the  north  side  of 


166  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

respondent's  tracks,  but  not  parallel,  said  street  running  at  a 
distance  of  about  4  blocks  from  the  Tunnel  Depot  on  the  east, 
and  about  2%  blocks  from  the  main  line  of  respondent's  rail- 
way track  westbound  at  the  Junction  road  on  the  west.  The 
house  of  deceased  was  situated  on  the  west  side  of  the  Junc- 
tion Road,  and  is  about  150  feet  north  from  the  main  line  of 
respondents'  railroad.  The  principal  part  of  Griswold  Street 
is  a  country  road,  being  outside  of  the  city  limits.  The  rail- 
road men,  including  the  decedent,  residing  near  Tappan  Junc- 
tion used  the  tracks  of  the  respondent,  going  to  the  Tunnel 
Depot  and  returning  therefrom,  to  such  an  extent  that  it  had 
become  a  custom.  It  was  inconvenient  and  considerably  out 
of  the  way  to  go  from  Tappan  Junction  to  the  Tunnel  Depot 
by  way  of  Griswold  Street. 

Decedent  worked  until  about  12  o'clock  on  the  night  of  Jan- 
uary 29,  1914,  at  his  home  making  out  the  time  sheets  and  pay- 
roll. The  next  day,  January  30,  1914,  he  went  to  his  home  at 
about  half  past  three  in  the  afternoon  to  finish  making  out 
the  pay-roll  and  time  sheets,  which  he  did  by  supper  time,  ex- 
cept signing  the  reports,  which  he  did  after  supper.  His  wife, 
the  applicant  in  this  case,  addressed  the  envelopes  containing 
the  reports  and  decedent  took  the  same  and  started  from  his 
home  at  about  6:30  o'clock  in  the  afternoon  (local  time)  for 
the  purpose  of  mailing  them  at  the  Tunnel  Depot  in  accord- 
ance with  his  instructions.  The  pay-roll  and  reports  were  in 
fact  mailed  by  deceased  at  the  Tunnel  Depot  as  appears  from 
the  fact  that  they  were  received  at  the  Detroit  office  by  res- 
pondent the  following  day  in  the  regular  course  of  mail. 
There  is  no  direct  evidence  of  decedent's  movements  from  the 
time  that  he  left  his  house  with  the  reports  and  pay-roll  to 
go  to  the  Tunnel  Depot.  At  about  midnight  his  body  was 
found  on  the  tracks  about  a  block  and  a  half  east  of  Tappan 
Junction  all  cut  to  pieces  and  lying  scattered  along  for  a  dis- 
tance of  75  to  100  feet,  portions  of  the  body  being  frozen  to 
the  track.  The  pieces  of  the  body  were  all  frozen  stiff  so  that 
it  was  impossible  to  tell  how  long  he  had  been  dead.  The  night 
was  snowing,  blowing  and  raining.  Tt  was  also  dark.  There 


ROSE  PAPINAW  vs.  GRAND  TRUNK  RAILWAY  CO.         167 

Is  no  direct  evidence  as  to  how  decedent  was  struck  and  run 
over.  From  all  the  facts  and  circumstances  it  is  fairly  infer- 
red that  decedent  while  returning  to  his  home  from  the  Tun- 
nel Depot  after  mailing  the  time  sheets  and  pay-roll  or  while 
-attending  the  switches,  was  struck  by  one  of  defendant's 
trains  and  killed. 

It  appears  beyond  question  that  in  discharging  his  duty  as 
section  foreman  he  went  to  the  Tunnel  Depot  and  mailed  the 
report  and  pay-roll  and  apparently  was  returning  to  his  home 
l>y  the  route  that  the  employes  of  the  company  were  accus- 
tomed to  travel,  when  the  accident  occurred.  The  night  was 
dark  and  stormy  rendering  the  happening  of  such  as  accident 
more  probable  than  otherwise. 

In  the  opinion  of  the  Board  Mr.  Papinaw  met  his  death  by 
an  accident  which  arose  out  of  and  in  the  course  of  his  em- 
ployment by  respondent  company,  and  his  widow  is  entitled  to 
recover  the  compensation  awarded  her  in  this  case. 


SUPREME  COUKT. 

ROSE  PAPINAW, 

Applicant  and  Appellee, 
vs. 
GRAND  TRUNK  RAILWAY  OF  CANADA, 

Respondent  and  Appellant. 

1.  MASTER  AND  SERVANT — INJURIES  TO  SERVANT — WORKMEN'S  COMPEN- 
SATION ACT — INDUSTRIAL  BOARD. 

Findings  by  the  Industrial  Accident  Board  are,  in  the  absence  of 
fraud,  conclusive,  if  the  facts  proven  are  capable  as  a  matter  of 
law  of  sustaining  the  inferences  drawn  therefrom. 

2.  MASTER  AND  SERVANT — INJURIES  TO  SERVANT — TRESPASSER. 


168  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

A  foreman  of  a  section  on  a  railroad  was  required  to  mail  out 
pay  rolls  so  that  they  would  reach  the  office  not  later  than  the 
first  of  the  month.  He  was  also  required  to  be  on  call  during  the 
night,  and  in  case  of  storms  was  supposed,  on  his  own  motion, 
to  clean  switches  and  see  that  they  were  in  proper  working 
order.  On  the  night  of  January  30,  1914,  which  was  stormy,  de- 
ceased walked  down  the  railroad  tracks  to  a  station  to  mail  his 
pay  roll,  and  informed  his  wife  that  he  might  be  late  in  caring  for 
the  switches. 

HELD:  That  in  such  case,  deceased,  while  using  the  tracks,  was 
not  a  trespasser,  but  was  upon  the  right  of  way  in  the  employer's 
business  either  whether  he  was  going  to  mail  his  reports  or  to 
visit  the  switches. 

3.  MASTER  AND  SERVANT — INJURIES  TO  SERVANT — WORKMEN'S   COMPEN- 
SATION ACT. 

Where  the  natural  and  reasonable  inference  is  that  the  the  acci- 
dent happened  while  the  deceased  servant  was  engaged  in  his 
employment,  the  master  has  the  burden  of  proving  the  contrary. 

4.  MASTER  AND  SERVANT — INJURIES  TO  SERVANT — WORKMEN'S   COMPEN- 
SATION ACT. 

In  a  proceeding  under  the  Workmen's  Compensation  Act  for  com- 
pensation for  the  death  of  a  section  foreman  run  over  by  a 
train,  evidence  held  to  warrant  a  finding  that  deceased  when 
killed  was  on  the  tracks  in  the  course  of  his  employment. 


Certiorari  to  Industrial  Accident  Board. 

Proceeding  by  Rose  Papinaw  against  the  Grand  Trunk 
Railway  Company  of  Canada  under  the  Workmens'  Compen- 
sation Act  for  compensation  for  the  death  of  her  husband. 
Compensation  was  awarded  by  the  Industrial  Accident  Board, 
and  defendant  brings  certiorari.  Affirmed. 

W.  K.  Williams,  of  Detroit,   (Harrison  Geer,  of  Detroit  of 
counsel)  for  appellant. 
J.  C.  Lelw,  of  Port  Huron,  for  appellee. 

STEERE,  J.  The  husband  of  applicant,  Alfred  Papinaw, 
who  had  been  for  several  years  section  foreman  for  respondent 
was  killed  during  the  night  of  January  30,  1914,  on  its  track 
between  his  residence  and  what  is  called  the  Tunnel  Depot  of 


ROSE  PAPINAW  vs.  GRAND  TRUNK  RAILWAY  CO.         169 

respondent's  road  in  the  city  of  Port  Huron.  On  her  appli- 
cation for  compensation  under  Act  No.  10  Pub.  Acts  1912  (ex- 
tra session)  the  Michigan  Industrial  Accident  Board  found 
that  his  death  arose  out  of  and  in  the  course  of  his  employ- 
ment, and  therefore  awarded  her  the  full  compensation  pro- 
vided in  such  cases. 

The  known  facts  and  circumstances,  relating  to  Papinaw's 
death  are  practically  undisputed.  Kespondent  contends  that 
the  award  was  erroneous  because  it  cannot  fairly  be  found  as 
a  matter  of  fact,  from  any  competent  evidence  in  the  case, 
that  his  death  did  so  arise. 

Deceased's  section  commenced  at  what  is  known  as  Tappan 
Junction,  which  was  about  1%  miles  west  of  the  Tunnel  De- 
pot and  extended  several  miles  westerly  toward  Detroit.  He 
resided  with  his  family  near  the  east  end  of  his  section  about 
150  feet  north  of  respondent's  tracks,  on  the  west  side  of  the 
Junction  road,  which  runs  north  and  south  crossing  respond- 
ent's tracks  a  short  distance  east  of  Tappan  Junction.  His 
daily  duties  as  section  foreman  required  him  usually  to  work 
upon  the  track  with  his  section  crew  from  about  7  o'clock  in 
the  morning  until  5:30  in  the  evening,  the  time  varying  some- 
what with  the  season  of  the  year.  It  was  also  his  duty  to 
patrol  the  track  Sunday  mornings  and  keep  a  yard  interlock- 
ing light  burning  at  night,  and  re-light  it  in  case  it  went  out 
during  the  night.  Between  his  section  and  the  Tunnel  Depot 
was  another  section  in  charge  of  a  different  foreman,  called  the 
Tunnel  freight  yard  section.  In  this  section  were  numerous 
switches  five  of  which  near  the  Tappan  Junction  road  crossing 
it  was  the  duty  of  deceased  to  look  after  in  case  of  storm.  It 
was  his  custom  when  nothing  out  of  the  ordinary  arose  and 
there  was  no  indication  of.  storm  to  retire  early.  He  was  sub- 
ject to  be  called  out  at  any  time  of  night  in  case  of  a  wreck 
or  to  clean  the  switches  in  event  a  storm  rendered  it  neces- 
sary. Another  of  his  duties  was  to  keep  the  time  of  his  crew 
and  daily  enter  it  on  a  time  book  from  which  he  made  out  their 
check  pay-rolls  at  his  home  as  opportunity  arose,  and  mailed 
them  at  the  Tunnel  Depot  to  respondent's  superintendent  in 


170  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Detroit.  This  was  required  to  be  done  for  the  first  half  of  each 
month  in  time  to  reach  the  Detroit  office  not  later  than  the 
morning  of  the  14th  and  for  the  last  half  not  later  than  the 
first  day  of  the  ensuing  month.  The  section  hands  worked  by 
the  day,,  with  extra  pay  for  overtime,  but  section  foremen  were 
then  paid  monthly  wages  of  $62.50,  which  covered  whatever 
services  they  rendered  during  the  month,  and  were  required 
to  be  on  call  at  all  times.  If  they  wished  to  be  away  beyond 
call  over  night  or  on  Sunday  they  had  to  secure  permission 
from  the  roadmaster,  while  the  section  hands  wTere  at  liberty 
to  go  and  come  as  they  pleased  on  nights  and  Sundays. 

There  was  a  street,  called  Griswold,  running  east  and  west 
on  the  north  side  of  respondent's  tracks,  but  not  parallel  with 
them,  at  a  distance  of  about  four  blocks  from  the  Tunnel  De- 
pot and  about  2%  blocks  from  respondent's  west  bound  track 
at  the  Junction  road  near  where  deceased  resided.  This  was 
outside  of  the  city  limits,  similar  to  a  country  road.  The  rail- 
road men,  including  deceased,  who  resided  near  Tappan  Junc- 
tion were  accustomed  to  use  the  railroad  tracks  in  going  to 
and  returning  from  the  Tunnel  Depot,  it  being  more  conveni- 
ent and  direct  than  by  the  street. 

Deceased's  education  was  limited  and  it  was  hard  for  him  to 
correctly  prepare  his  pay-rolls  and  reports.  He  worked  at  this 
task  the  evening  before  until  midnight  and  on  the  afternoon  of 
January  30,  at  about  half-past  three,  returned  home  to  com- 
plete making  them  out,  which  he  practically  finished  about 
supper  time.  After  suppper  he  signed  the  papers  and  his  wife 
addressed  the  envelopes  containing  them.  He  then  left  home, 
at  about  6 :30  o'clock,  for  the  purpose  of  mailing  them  at  the 
Tunnel  Depot,  as  was  customary  and  in  accordance  with  his 
instructions,  that  the}T  might  be  received  in  Detroit  the  next 
day.  There  is  no  direct  evidence  of  his  movements  from  that 
time.  These  papers  were  mailed  that  evening  at  the  Tunnel 
Depot  and  went  out  on  a  train  which  left  at  6:55,  being  re- 
ceived in  Detroit  the  following  day.  Sometime  about  mid- 
night his  remains  were  found  by  a  switchman  on  respondent's 
tracks,  badly  mutilated  and  cut  to  pieces,  portions  being  scat- 


ROSE  PAPINAW  vs.  GRAND  TRUNK  RAILWAY  CO.          171 

tered  along  and  frozen  to  the  track,  at  a  locality  variously 
stated  at  from  about  a  block  and  a  half  east  of  Tappan  Junc- 
tion to  1300  feet  east  of  the  Junction  road.  It  was  a  dark, 
stormy  night  with  a  mixture  of  rain  and  snow  flying  and  fall- 
ing. His  wife  testified  that  he  seldom  went  to  the  city  at  night 
and  never  to  the  tunnel  except  on  the  nights  when  it  was  his 
duty  to  mail  his  pay-rolls  and  reports;  that  on  leaving  this 
night  he  commented  upon  its  being  dark  and  stormy,  telling 
her  that  if  he  was  late  she  could  know  that  he  was  out  work- 
ing on  the  switches. 

Between  when  deceased  left  home  and  his  remains  were  dis- 
covered, the  time  of  his  death  is  necessarily  indefinite.  The 
undertaker  who  was  summoned  shortly  after  their  discovery 
mid  cared  for  the  remains  testified  that  they  were  strung 
along  the  track  seventy-five  or  one  hundred  feet,  some  parts 
frozen  to  the  rails  or  ties  so  that  he  had  difficulty  in  loosen- 
ing them;  that  it  was  a  ''cold,  nasty,  raw  night,"  and  he 
t  IK  (light  from  the  condition  of  the  body,  which  he  judged  had 
been  dead  an  hour  and  a  half  or  two  hours,  that  more  than 
one  train  ran  over  him ;  that  "one  had  taken  him  one  way  and 
another  brought  him  back." 

In  considering  this  case  we  start  with  the  well  settled  propo- 
sition that  if  the  facts  proven  are  capable  as  a  matter  of  law 
of  sustaining  the  inferences  of  fact  drawn  from  them  by  the 
Industrial  Accident  Board,  its  findings  are  conclusive,  in  the 
absence  of  fraud,  and  the  appellate  court  is  not  at  liberty  to 
interfere  with  them.  Section  12  part  3  of  the  Industrial  Acci- 
dent Law  has  been  too  often  and  recently  so  construed  by  this 
court  to  require  citation  of  cases.  This  is  but  an  application 
under  the  statute  of  the  comprehensive  and  fundamental  prin- 
ciple universal  in  courts  of  law,  that  whether  there  is  any  com- 
petent evidence  is  for  the  Court  to  determine,  but  whether  the 
evidence  is  sufficient  is  a  question  for  the  jury,  the  function  of 
the  accident  board  being  in  that  respect  those  of  a  jury  in  ac- 
tions at  law. 

This  case  is  readily  distinguishable  from  that  line  of  deci- 
sions cited  by  respondent  in  which  the  employe  by  his  con- 


172  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

tract  of  hiring  was  engaged  to  work  during  certain  hours  and 
was  injured  away  from  his  place  of  employment,  while  going 
to  or  returning  from  work,  or  was  absent  during  some  inter- 
mission for  meals,  or  otherwise,  not  then  upon  his  employer's 
business  nor  subject  to  his  control,  at  liberty  for  the  time  to 
go  where  and  do  what  he  pleased,  free  from  any  claim  of  the 
employer  upon  his  services.  Here  it  is  shown  conclusively 
that  by  his  contract  of  hiring  deceased  was  at  the  time  of  his 
death  required  to  be  within  reach,  liable  at  any  time  to  be 
called  to  work  upon  the  track,  and  in  that  sense  on  duty  sub- 
ject to  his  employer's  orders  and  control.  His  wife  and  his 
fellow  foreman,  of  the  section  east  of  his,  so  testified,  as  also 
respondent's  supervisors  of  tracks  who  said,  in  part : 

"The  section  foreman  is  supposed  to  be  on  call  at  any  time,  in  case 
of  trouble  with  the  switches.  *  *  *  I  gave  him  (Papinaw)  instruc- 
tions with  reference  to  those  switches  because  he  lived  near,  and  was 
the  nearest  man  to  be  called.  Sharrard  lived  near  the  Tunnel  depot. 
Although  it  was  on  Sharrard's  section  I  gave  Papinaw  orders  that  in 
case  of  storm  to  look  after  the  cleaning  of  those  Switches.  *  *  *  He 
was  supposed  to  be  on  call  in  case  the  tracks  got  in  bad  condition  of 
repair  so  that  he  could  get  there  without  tying  up  traffic.  *  *  *  If 
the  foreman  has  not  gone  to  bed  before  it  starts  storming  he  is  sup- 
posed to  go  out  himself  without  being  called." 

Especial  and  extra  duties  rested  upon  deceased  that  night. 
He  was  required  to  be  on  call.  It  was  a  stormy  night,  of  a 
kind  requiring  unusual  vigilance  as  to  the  switches,  and  it 
was  imperative  that  he  mail  his  pay  rolls  at  the  Tunnel  De- 
pot before  the  evening  train  left  so  that  they  would  be  in  De- 
troit on  the  day  required.  He  worked  upon  those  papers  until 
supper  time  and  started  after  supper  for  the  Tunnel  Depot  to 
mail  them,  leaving  word  with  his  wife  which  would  keep  him 
in  touch  with  his  employer  during  his  absence,  so  near  as  pos- 
sible. It  is  conceded  that  he  mailed  the  papers  that  evening 
and  they  reached  their  destination  on  time.  It  was  his  duty 
after  mailing  them  to  return  and  either  be  at  home  on  c'all  or 
looking  after  the  switches  near  by.  His  last  words,  so  far  as 
there  Is  any  proof,  show  such  was  his  intent  and  that  he  left 
with  this  duty  on  his  mind.  He  was  in  the  habit  of  retiring 


ROSE  PAPINAW  vs.  GRAND  TRUNK  RAILWAY  CO.         173 

early  when  there  was  no  indication  of  a  storm.  Under  the 
ici  ins  of  his  employment  it  was  as  much  his  duty  to  return  to 
his  home,  or  the  switches  near  there,  after  mailing  the  papers 
at  the  Tunnel  Depot  as  it  was  to  go  there  for  that  purpose.  In 
going  he  started  along  respondent's  track,  and  presumably 
went  that  way  as  was  his  custom  and  that  of  other  employes 
of  respondent,  because  it  was  more  convenient  and  the  dis- 
tance to  the  tunnel  shorter  than  by  any  other  route.  He  was  a 
section  foreman  whose  special  work  was  to  be  upon,  travel 
along  and  care  for  his  employer's  track.  He  was  not  a  tres- 
passer upon  its  right  of  way  in  any  sense  which  would  deny 
relief  under  this  act,  and  no  question  of  his  negligence  is  in- 
volved in  this  proceeding.  The  place  and  cause  of  his  death 
are  readily  inferable  from  the  facts  proven.  Respondent's 
counsel  say :  "He  was  in  the  act  of  going  home  at  the  time  he 
was  killed."  If  so,  under  the  circumstances  of  this  case  he 
was  performing  a  duty  in  the  line  of  his  employment  out  of 
and  in  the  course  of  which  the  accident  which  caused  his  death 
befell  him.  The  accident  occurred  while  he  was  doing  that 
which  a  man  so  employed  can  reasonably  do,  and  ought  to  do, 
and  wras  injured  at  a  place  on  his  employer's  premises  where 
under  the  proven  circumstances  his  combined  duties  made  it 
reasonable  that  he  should  be,  and  there  is  no  proof  that  he 
was  there  for  any  other  purpose  than  on  his  return  in  com- 
pleting a  trip  to  the  Tunnel  Depot,  in  the  line  of  his  employ- 
ment, to  the  place  where  his  employment  required  him  to  be 
on  call  or  at  work,  and  where  he  wrould  have  been  during  that 
evening  but  for  the  necessity  of  the  trip. 

This  claim  is  by  a  dependent  of  a  workman  who  was  acci- 
dentally killed,  and  whose  evidence  is  therefore  not  available. 
In  (i rant  vs.  Glasgow  Ry.,  1  B.  W.  C.  17,  it  is  said: 

"If  in  such  a  case  facts  are  proved,  the  natural  and  reasonable 
inference  from  which  is  that  the  accident  happened  while  the  de- 
ceased was  engaged  in  his  employment,  I  think  it  falls  on  the  em- 
ployer, if  he  disputes  the  claim,  to  prove  that  the  contrary  was  the 
case." 

Tli at  an  employe,  not  actually  at  work,  is  on  duty  if  required 


174  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

to  be  at  a  certain  place  on  call  and  ready  for  work,  is  held  in 
St.  L.  A.  &  T.  Rij.  Co.  vs.  Welsh,  72  Texas  298,  where  it  is,  said 
of  a  member  of  a  railroad  bridge  gang  injured  while  sleeping 
in  a  bunk  car  provided  by  his  employer: 

"The  plaintiff  at  the  time  of  the  accident  was  asleep  on  a  car  be- 
longing to  the  company,  provided  by  it  for  that  purpose,  which  was 
placed  upon  its  sidetrack.  He  was  liable  to  be  called  upon  at  any 
moment  to  go  out  with  his  gang  upon  duty  upon  the  road.  We  think 
he  must  be  held  to  have  been  upon  duty  at  the  time  he  received  the 
injury.  That  the  accident  occurred  when  he  was  resting  from  his 
labors,  we  think  makes  no  difference.  He  was  subject  to  the  call  of 
the  company  at  the  time,  and  his  case  differs  from  that  of  other  ser- 
vants who  engage  for  certain  hours  of  employment,  and  who  are  in- 
jured during  the  intervals  in  which  the  master  has  no  claim  upon  his 
services." 

The  Arbitration  Committee  and  Industrial  Accident  Board 
were  at  liberty  in  determining  the  facts  in  this  case  to  draw 
all  rational  and  natural  inferences  from  the  evidentiary  cir- 
cumstances shown.  To  infer  and  find  that  the  accident  which 
resulted  in  Papinaw's  death  arose  out  of  and  in  the  course  of 
his  employment  had  evidential  support,  and  was  neither  un- 
natural nor  irrational. 

The  decision  of  the  Industrial  Accident  Board  is  therefore 
affirmed,  with  costs  to  appellee. 


JESSIE  B.  CLEM  vs.   CHALMERS   MOTOR  CO.  175 


JESSIE  B.  CLEM, 

Applicant, 
vs. 
CHALMERS  MOTOR  COMPANY, 

Respondent. 

INTENTIONAL  AND  WILFUL  MISCONDUCT — CARPENTER  INJURED  WHILE 
DESCENDING  FROM  A  BUILDING  BY  A  ROPE  INSTEAD  OF  A  LADDER. 
Applicant's  decedent  was  employed  as  a  carpenter  by  respondent 
and  on  the  day  of  his  injury  was  working  on  the  flat  roof  of  a 
large  building  which  was  being  constructed,  the  roof  being  about 
20  feet  from  the  ground.  The  weather  was  very  cold  and 
decedent  and  the  other  men  were  called  down  from  the  roof  by 
the  foreman  at  about  9  o'clock  in  the  forenoon  for  a  hot  coffee 
lunch,  which  it  was  usual  to  serve  to  the  men  to  mitigate  the 
effects  of  the  cold.  The  means  generally  used  for  descending 
from  the  roof  was  an  extension  ladder,  but  decedent  chose  to 
descend  by  means  of  a  rope,  and  in  some  manner  lost  his  hold 
of  the  rope  and  was  killed.  Payment  of  compensation  was  re- 
fused on  the  ground:  (1)  That  the  injury  is  not  one  arising  out 
of  and  in  the  course  of  the  employment,  and  (2)  that  it  was  the 
result  of  decedent's  intentional  and  wilful  misconduct. 

HELD:  1.  That  the  act  of  coming  down  from  the  roof  for  coffee 
lunch  at  the  foreman's  call  was  in  the  course  of  deceased's  em- 
ployment. 

2.  That  the  dangers   ordinarily  incident  to  descending  from 
such   roof    arise   out   of   the   employment,  and   this   fact  is  not 
fundamentally  changed   by  varying  the  manner  and   means   of 
descending  as  in  this  case. 

3.  There  being  no  proof  that  any  order  or  rule  forbidding 
the   use  of   a   rope  in  descending  was   communicated   or  made 
known  to  decedent,  and  it  appearing  that  other  employes  used 
the  rope  method  in  descending,  and  that  deceased  used  much 
care  in  letting  himself  down  over  the  edge  of  the  roof  with  such 
rope,    his    act    did    not    constitute    intentional    and    wilful    mis- 
conduct within  the  meaning  of  the  law. 


Opinion  by  the  Board: 

On  December  12,  1912,  Charles  S.  Clem  was  in  the  employ 


176  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

of  Chalmers  Motor  Company  in  Detroit  and  was  receiving  an 
average  weekly  wage  of  $20.65.  He  was  a  carpenter  by  trade 
and  was  working  on  the  roof  of  the  new  storage  building 
which  was  being  erected  by  the  company.  This  building  was 
approximately  160  feet  long,  150  feet  wide  and  19  or  20  feet 
high,  the  roof  in  course  of  construction  being  what  is  common- 
ly called  a  flat  roof.  The  day  was  cold  and  the  men  employed 
on  this  roof,  25  or  30  in  number,  were  obliged  to  wear  gloves 
or  mittens  in  their  work.  During  the  few  days  of  very  cold 
weather  at  this  time,  the  foreman  provided  hot  coffee  for  the 
men,  and  at  about  9  o'clock  in  the  forenoon  of  each  day  would 
call  them  down  from  the  roof  for  a  hot  coffee  lunch.  The  or- 
dinary means  used  by  the  men  for  ascending  to  and  descending 
from  the  roof  of  the  building  was  an  extension  ladder  such  as 
painters  use,  20  feet  in  length,  resting  against  the  south  side 
of  the  building  and  tied  to- it  by  ropes.  This  was  the  only  lad- 
der provided.  The  heavier  material  used  by  the  men  in  their 
work  was  lifted  to  the  roof  by  block  arid  tackle  with  rope  falls, 
and  in  addition  to  this  there  were  about  a  dozen  ropes  from 
20  to  30  feet  in  length  which  were  used  to  pull  up  lighter  ma- 
terial over  the  cornice  of  the  building  when  needed  by  the  men 
working  on  the  roof.  These  ropes  were  located  around  in  dif- 
ferent places  so  that  when  material  was  needed  at  any  parti- 
ular  place  there  would  be  a  rope  near  at  hand  with  which  to 
haul  it  up.  The  ropes  were  lying  on  the  roof  and  at  places 
where  the  men  happened  to  leave  them. 

At  about  9  o'clock  in  the  forenoon  of  December  12,  1912,  the 
foreman  called  the  men  working  on  the  roof  to  come  down  for 
hot  coffee,  and  it  appears  that  they  proceeded  to  go  down  by 
way  of  the  ladder,  one  following  another.  While  others  were 
going  down  in  this  way,  Mr.  Clem  said  to  a  fellow  workman 
named  Sekos.  "Hold  this  rope  and  I  will  slip  down."  From 
this  point  Sekos  tells  the  story  as  follows :  "'I  was  in  a  hurry 
to  get  down.  I  wanted  to  get  down,  but  I  just  held  it  (the 
rope).  Another  man  was  behind  me  on  the  roof,  but  did  not 
have  hold  of  the  rope.  *  *  *  I  held  the  rope  all  right;  it 
didn't  let  loose  at  all ;  it  didn't  break,  and  if  he  had  hung  on 


JESSIE  B.  CLEM  vs.   CHALMERS   MOTOR  CO.  177 

the  rope  all  right  he  would  have  got  down  safely.  I  guess  he 
lost  the  rope;  I  guess  his  hands  were  cold;  he  had  mitts  on  his 
hands  and  so  did  I.  It  was  pretty  cold ;  we  were  so 

cold  we  were  going,  down  to  get  some  coffee." 

The  only  other  eye  witness  was  Albert  E.  Glaser,  the  man 
stood  behind  Sekos  when  Clem  started  down  the  rope.  Glaser  tes- 
tified in  substance  that  Clem  asked  Sekos  to  hold  the  rope  for 
him;  that  Sekos  held  one  end  of  the  rope;  that  Clem  took  the 
other  end  of  it,  went  over  to  the  edge  of  the  roof  and  got  down, 
feet  first  on  his  knees,  and  went  down  backwards,  with  his 
legs  down  first  holding  onto  the  rope  with  his  hands.  That  he 
was  careful  about  it,  and  that  would  be  the  most  careful  way 
to  do  it ;  Clem  had  gloves  on  his  hands ;  it  was  so  cold  that  we 
could  not  work  without  gloves;  we  were  all  cold  at  that  time 
and  fingers  a  little  stiff  with  the  cold ;  a  man  with  fingers  stif- 
fened with  the  cold  would-  not  be  able  to  hold  onto  a  rope  as 
he  otherwise  could. 

Angus  E.  McDonald  was  subforenian,  having  charge  of  part 
of  the  men  working  on  the  roof.  McDonald  had  been  a  sailor 
and  used  a  rope  instead  of  the  ladder  on  going  up  to  and  down 
from  the  roof  of  this  building  probably  four  or  five  times ;  and 
on  one  occasion  wrhen  he  so  used  a  rope,  the  general  foreman 
cautioned  him  and  the  men  then  present  not  to  use  ropes  for 
going  up  and  down,  but  to  use  the  ladder.  There  was  no  evi- 
dence that  Clem  \vas  present  at  this  time,  or  that  the  fore- 
man's order  not  to  use  the  rope  ever  reached  him.  It  is  con- 
ceded that  no  question  as  to  the  effect  of  violation  of  shop 
rules  or  orders  is  involved  in  this  case.  It  is  also  conceded  the 
"(Nulling  down  off  the  roof  for  coffee  lunch"  at  the  foreman's 
call  was  uin  the  course  of  Clem's  employment."  The  issue  is 
narrowed  down  to  "the  manner  of  coming  down''  from  the 
roof,  and  the  means  used  by  Clem  for  that  purpose.  It  is  con- 
tended on  behalf  of  the  company  that  compensation  should  be 
denied  because  (1)  the  injury  is  not  one  arising  out  of  and  in 
the  course  of  the  employment  of  deceased,  and  (2)  that  it  was 
the  result  of  his  intentional  and  wilful  misconduct. 
23 


178  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

The  first  objection,  we  think,  cannot  be  sustained.  It  is  a 
matter  of  common  knowledge  that  carpenters'  employes  in  the 
erection  of  a  building  must  ascend  and  descend  and  change 
their  positions  on  the  building  as  the  work  requires  and  that 
they  are  often  required  to  choose  the  means  and  manner  of  so 
doing.  This  is  also  shown  by  the  proofs,  attention  being  called 
to  the  testimony  of  McDonald,  the  sub-foreman,  that  it  is  not 
uncommon  for  men  to  go  down  a  rope  if  there  is  one  there,  and 
that  he  would  sooner  go  down  a  rope  than  not.  We  think  the 
means  and  manner  chosen  by  deceased  to  descend  from  the 
roof,  did  not  place  his  act  of  descending  outside  of  the  course 
of  his  employment.  Did  his  choice  of  the  means  and  manner 
of  descent  constitute  "intentional  and  \vilful  misconduct" 
within  the  meaning  of  the  Compensation  Law?  Mere  neglig- 
ence on  the  part  of  deceased  will  not  defeat  the  claim  of  his 
widow  for  compensation.  A  mistaken  estimate  of  the  risk  in 
descending  by  means  of  a  rope,  or  the  mere  choosing  of  means 
and  manner  of  descending  which  were  less  safe  than  the  lad- 
der, would  at  most  be  only  negligence  on  the  part  of  deceased. 
There  is  no  evidence  of  wilfulness,  except  what  might  be  infer- 
red from  the  naked  fact  of  choosing  the  rope  method  of  de- 
scending. The  evidence  shows  that  deceased  exercised  much 
care  in  letting  himself  down  over  the  edge  of  the  roof  with  the 
rope.  There  is  an  entire  absence  of  any  showing  of  wilfulness 
by  any  act  or  w^ord  of  deceased  except  as  above,  and  wre  think 
it  may  be  fairly  said  that  deceased  acted  in  the  belief  that  he 
could  safely  descend  by  the  rope.  He  fell  because  of  losing 
his  hold  on  the  rope.  Whether  this  resulted  from  his  fingers 
being  stiffened  with  cold,  or  from  his  gloves,  or  for  some  other 
cause  does  not  appear.  It  was  not  impossible  that  by  reason 
of  frosted  fingers  or  some  other  cause  he  might  have  lost  his 
hold  on  the  ladder,  had  he  chosen  that  way  of  descending.  We 
are  of  the  opinion  that  the  act  complained  of  did  not  constitute 
"intentional  and  wilful  misconduct"  within  the  meaning  of  the 
statute,  and  the  decision  of  the  arbitration  committee  in  favor 
of  the  widow  is  affirmed. 


JESSIE  B.   CLEM  vs.   CHALMERS   MOTOR  CO.  179 


This  case  was  appealed  to  the  Supreme  Court  and  affirmed 
the  following-  being  the  full  opinion  of  the  Supreme  Court: 


SUPREME  COURT. 

JESSIE  B.  CLEM, 

Claimant  and  Appellee, 
vs. 
CHALMERS  MOTOR  COMPANY, 

Defendant  and  Appellant. 

1.  MASTER  AND  SERVANT — INDUSTRIAL  ACCIDENT  COMMISSION — PERSONAL 
INJURIES — COURSE  OF  EMPLOYMENT. 

Under  the  terms  of  Act  No.  10,  Special  Session  1912,  providing 
for  an  industrial  accident  board  and  authorizing  compensation 
for  injuries  to  any  servant  "arising  out  of  and  in  the  course 
of  his  employment,"  the  provisions  included  a  decedent  who 
was  called  from  the  roof  of  a  building  where  he  was  working  to 
partake  of  a  lunch  served  by  the  employer,  and  who,  in  descend- 
ing by  means  of  a  rope  that  extended  over  the  edge  of  the  roof 
and  within  12  or  13  feet  of  the  ground,  instead  of  using  a  ladder 
which  was  provided  and  was  safely  attached  to  the  roof,  fell  and 
was  killed;  his  widow's  right  of  recovery  was  properly  sustained 
by  the  industrial  accident  board. 

2.  SAME. 

Nor  was  his  act  intentional  and  wilful  misconduct  so  as  to  defeat 
the  claim. 


MCALVAY,  C.  Jv  dissenting. 

Certiorari  by  the  Chalmers  Motor  Company  to  review  a  rul- 
ing of  the  Industrial  Accident  Board  allowing  a  claim  in  favor 
of  Jessie  B.  Clem.  Submitted  June  19,  1913.  Affirmed  Jan- 
uary 5,  1914. 

Eowen,  Douglas,,  Eaman  d-  B  arbour,  for  appellant. 
Shields  &  Shields,  for  appellee. 


180 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


MOORE,  J.  This  is  certiorari  directed  to  the  Industrial 
Accident  Board  of  the  State  to  review  an  order  allowing  the 
claim  of  Jessie  B.  Clem,  widow  of  Charles  S.  Clem,  deceased, 
for  the  sum  of  |3,000  against  the  contestant.  The  claim  is 
made  under  the  employers  liability  act,  so  called,  being  Act 
No.  10  of  the  Public  Acts  of  the  Special  Session  of  1912. 

Charles  S.  Clem  sustained  injuries  by  falling  while  descend- 
ing from  the  roof  of  a  building  in  the  course  of  construction 
by  means  of  a  rope.  It  is  conceded  if  there  is  any  liability 
that  the  compensation  of  $3,000  is  a  correct  sum  to  be  paid. 
Following  the  death  of  Mr.  Clem,  an  arbitration  was  had  before 
an  arbitration  committee,  which  allowed  the  claim.  An  ap- 
peal was  taken  to  the  Industrial  Accident  Board,  which  board 
affirmed  the  award  of  the  arbitration  committee. 

The  record  shows  Mr.  Clem  had  worked  for  some  weeks  as 
a  carpenter  for  the  Chalmers  Motor  Company.  On  the  day  of 
the  accident  he  was  assisting  in  placing  roof  boards  upon  a 
building  which  was  150  feet  wide,  160  feet  long,  and  19  or  20 
feet  high  from  the  ground  to  the  eaves.  It  was  a  flat  roof.  Be- 
tween 9  and  10  o'clock  the  men  were  instructed  by  a  sub-fore- 
man to  come  down  from  the  top  of  the  building  for  a  coffee 
lunch,  so  called.  The  men  went  to  and  from  the  roof  in  the 
course  of  the  work  by  means  of  a  ladder  which  was  attached 
firmly  to  the  side  of  the  building,  extending  from  the  ground 
to  the  roof.  There  were  on  the  roof  of  the  building  some  loose 
ropes.  These  were  used  for  the  purpose  of  raising  and  lower- 
ing material.  They  were  not  provided  for  men  to  go  up  and 
down.  On  the  call  being  made  to  come  for  the  coffee,  all  of 
the  men  descended  by  the  ladder  but  Mr.  Clem  and  two  fellow 
workmen  named  Sekos  and  Glaser.  Instead  of  going  down  the 
ladder,  Mr.  Clem  picked  up  one  of  the  loose  ropes  about  20 
feet  long  and  gave  one  end  of  it  to  Sekos,  directing  him  to  hold 
it  in  his  hand.  The  rope  extended  over  the  edge  of  the  roof 
about  seven  feet.  Taking  the  rope  in  his  hands,  Mr.  .Clem 
passed  over  the  edge  of  the  roof  and  disappeared  from  the  sight 
of  the  two  men  on  the  roof.  If  any  one  saw  what  happened 
after  that,  it  does  not  appear  in  the  record  further  than  that 


JESSIE  B.  CLEM  vs.   CHALMERS  MOTOR  CO.  181 

Mr.  Clem  fell  and  was  hurt,  receiving  injuries  which  resulted 
in  his  death. 

The  following  appears  in  the  record: 

"Mr.  Kinnane:  Now,  is  it  contended  that  the  act  of  coming  down 
off  the  building  to  coffee  lunch  when  they  were  called  by  the  foreman 
for  that  cause  was  not  in  the  due  course  of  their  employment?  I  am 
not  speaking  of  the  manner  of  doing  it  but  the  fact  of  their  coming 
down  and  going  back. 

"Mr.  Rogers:    I  concede  that  was  a  part  of  his  employment. 

"Mr.  Kinnane:  Then  it  would  simmer  down  to  the  manner  of  com- 
ing down,  would  it  not? 

"A.    Yes. 

"Mr.  Kinnane:     That  would  be  the  only  matter  at  issue? 

"Mr.  Rogers:  Yes.  My  point  on  that  matter  as  to  that  act:  When 
the  man  was  doing  that  act  he  was  not  in  the  course  of  his  em- 
ployment." 

It  is  the  claim  of  appellant  (we  quote  from  the  brief)  : 

"(1)  Charles  S.  Clem,  the  deceased,  did  not  receive  a  personal 
injury  arising  out  of  and  in  the  course  of  his  employment. 

"(2)  He  was  injured  by  reason  of  his  intentional  and  wilful  mis- 
conduct." 

The  statute  involved  here  is  of  such  recent  date  that  its  con- 
struction has  never  been  before  this  court.  Statutes  of  a  sim- 
ilar character  are  so  recent  that  there  is  a  paucity  of  decisions 
relating  to  them,  especially  in  the  American  courts.  Counsel 
cite  a  number  of  English  and  Scotch  cases,  but  none  of  them  is 
on  all  fours,  nor  is  the  principle  of  law  stated  in  them  con- 
trolling in  the  case  before  us. 

The  case  now  in  this  court  is  one  of  the  first  impression.  The 
title  of  Act  No.  10,  Public  Acts  of  Special  Session  of  1912, 
reads  as  follows: 

"An  act  to  promote  the  welfare  of  the  people  of  this  State,  relating 
to  the  liability  of  employers  for  injuries  or  death  sustained  by  their 
employees,  providing  compensation  for  the  accidental  injury  to  or 
death  of  employees  and  methods  for  the  payment  of  the  same,  estab- 
lishing an  industrial  accident  board,  defining  its  powers,  providing  for 
a  review  of  its  awards,  making  an  appropriation  to  carry  out  the  pro- 
visions of  this  act,  and  restricting  the  right  to  compensation  or 
damages  in  such  cases  to  such  as  are  provided  by  this  act." 


182 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


We  quote  from  the  act: 

"The  people  of  the  State  of  Michigan  enact: 

"PART  1. 
"Modification  of  Remedies. 

"SECTION  1.  In  an  action  to  recover  damages  for  personal  injury 
sustained  by  an  employee  in  the  course  of  his  employment,  or  for 
death  resulting  from  personal  injuries  so  sustained,  it  shall  not  be  a 
defense:  (a)  That  the  employee  was  negligent,  unless  and  except  it 
shall  appear  that  such  negligence  was  wilful;  (b)  that  the  injury 
was  caused  by  the  negligence  of  a  fellow  employee;  (c)  that  the 
employee  had  assumed  the  risks  inherent  in  or  incidental  to,  or  aris- 
ing out  of  his  employment,  or  arising  from  the  failure  of  the  em- 
ployer to  provide  and  maintain  safe  premises  and  suitable  appliances. 

"SEC.  2.  The  provisions  of  section  one  shall  not  apply  to  actions 
to  recover  damages  for  personal  injuries  sustained  by  household 
domestic  servants  and  farm  laborers. 

"SEC.  3.  The  provisions  of  section  one  shall  not  apply  to  actions 
to  recover  damages  for  the  death  of,  or  for  personal  injuries  sustained 
by  employees  of  any  employer  who  has  elected,  with  the  approval  of 
the  industrial  accident  board  hereinafter  created,  to  pay  compem 
tion  in  the  manner  and  to  the  extent  hereinafter  provided. 

"SEC.  4.  Any  employer  who  has  elected,  with  the  approval  of  th( 
industrial  accident  board  hereinafter  created,  to  pay  compensation 
hereinafter  provided,  shall  not  be  subject  to  the  provisions  of  section 
one;  nor  shall  such  employer  be  subject  to  any  other  liability  what- 
soever, save  as  herein  provided  for  the  death  of  or  personal  injury  to 
any  employee,  for  which  death  or  injury  compensation  is  recoverable 
under  this  act,  except  as  to  employees  who  have  elected  in  the  manner 
hereinafter  provided  not  to  become  subject  to  the  provisions  of  this 
act." 

The  appellant  elected  to  come  within  the  provisions  of  th< 
act. 

Sections  1  and  2,  pt.  2,  of  the  act,  read  in  part  as  follows: 

"SECTION  1.  If  an  employee  who  has  not  given  notice  of  his  electior 
not  to  be  subject  to  the  provisions  of  this  act,  as  provided  in  part  1, 
section  8,  or  who  has  given  such  notice  and  has  waived  the  same 
hereinbefore  provided,  receives  a  personal  injury  arising  out  of  am 
in  the  course  of  his  employment  by  an  employer  who  is  at  the  time 
of  such  injury  subject  to  the  provisions  of  this  act,  he  shall  be  pai( 
compensation  in  the  manner  and  to  the  extent  hereinafter  provided, 


JESSIE  B.  CLEM  vs.  CHALMERS  MOTOR  CO.  183 

or  in  case  of  his  death  resulting  from  such  injuries  such  compensation 
shall  be  paid  to  his  dependents  as  hereinafter  defined. 

"SEC.  2.  If  the  employee  is  injured  by  reason  of  his  intentional  and 
wilful  misconduct,  he  shall  not  receive  compensation  under  the  pro- 
visions of  this  act." 


have  quoted  sufficiently  from  the  act*  to  show  that  it  is 
a  very  marked  departure  from  the  old  rule  of  liability  on  the 
part  of  the  employer  to  the  employee.  It  is  clear  that  as  to 
the  employer,  who  has  accepted  the  provisions  of  the  act,  the 
risks  of  the  employee,  arising  out  of  and  in  the  course  of  his 
employment,  are  not  assumed  as  heretofore  by  the  employee 
but  must  be  compensated  for  according  to  the  provisions  of 
the  act,  unless  the  employee  is  injured  by  reason  of  his  inten- 
tional and  wilful  misconduc^. 

The  first  question  then  is:  Did  Mr.  Clem  receive  a  per- 
sonal injury  arising  out  of  and  in  the  course  of  his  employ- 
ment? And  the  second  question  is:  Was  he  injured  by  rea- 
son of  his  intentional  and  wilful  misconduct?  The  questions 
are  so  interwoven  that  they  may  well  be  discussed  together. 
Mr.  Clem,  with  others,  was  employed  on  a  December  day  con- 
structing a  flat  roof  on  a  large  building  only  19  or  20  feet  high. 
It  would  add  not  only  to  the  comfort  of  these  men  but  to  their 
efficiency  as  workers  to  have  them  about  9  or  10  o'clock  par- 
take of  a  luncheon,  which,  from  the  fact  that  hot  coffee  was 
served,  was  called  a  coffee  lunch.  The  luncheon  was  ordered 
by  the  foreman  of  the  company.  It  was  prepared  on  the  prem- 
ises, and  when  it  was  ready  the  men  were  directed  by  the  sub- 
foreman  to  go  and  partake  of  it.  All  of  them  started  to  do  so. 
They  did  not  in  doing  so  leave  the  premises  of  the  appellant. 
All  of  them  but  three  went  down  the  ladder.  Mr.  Clem  went 
down  the  rope  which  projected  over  the  eaves  seven  feet.  If 
he  had  kept  hold  of  the  rope  until  he  reached  the  end  of  it,  if 
he  was  a  man  of  ordinary  height  and  his  arms  were  of  the  or- 
dinary reach,  his  feet  would  be  within  five  to  seven  feet  of  the 
ground.  If,  when  the  call  to  come  to  lunch  was  made,  Mr. 
Clem,  in  responding  to  the  call,  had  inadvertently  stepped  in- 
to an  opening  in  the  uncompleted  roof  or  in  company  with  the 


184  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

others  had,  in  the  attempt  to  reach  the  ladder,  got  too  near 
the  edge  of  the  roof  and  fallen  and  been  hurt,  would  it  be 
claimed  that  the  injury  did  not  arise  out  of  and  in  the  course 
of  his  employment?  The  getting  his  luncheon  under  the  con- 
ditions shown  was  just  as  much  a  part  of  his  duty  as  the  lay- 
ing of  a  board  or  the  spreading  of  the  roofing  material.  The 
injury,  then,  having  arisen  out  of  and  in  the  course  of  his  em- 
ployment, can  it  be  said  that  compensation  should  be  defeated 
because  of  his  intentional  and  wilful  misconduct?  His  pri- 
mary object  was  like  that  of  all  the  other  men,  to  get  to  and 
partake  of  his  luncheon.  There  is  nothing  to  indicate  that  he 
intended  or  expected  to  be  hurt.  Nearly  all  the  other  men 
went  down  by  the  ladder.  He  went  down  by  a  rope  where,  if 
his  plans  had  carried  he  would  have  had  to  make  a  drop  of 
only  five  to  seven  feet.  Is  that  such  intentional  and  wilful 
misconduct  as  to  defeat  compensation  under  the  act?  There 
is  scarcely  a  healthy,  wide-awake  ten-year-old  boy  who  does 
riot  frequently  take  a  greater  chance  and  without  harm.  For 
a  man  accustomed  to  physical  toil,  judged  by  what  is  occurr- 
ing daily,  it  cannot  be  said  that  such  an  act  should  be  charac- 
terized as  intentional  and  wilful  misconduct  within  the  mean- 
ing of  the  statute. 
The  allowance  of  the  claim  is  affirmed. 

BROOKE,  KUHN,  STONE,  OSTRANDER,  BIRD  and  STEERE,  JJ., 
Concurred  with  MOORE,  J. 

MCALVAY,  C.  J.  (dissenting).  I  think  that  the  cause  of  the 
injury  to  the  deceased  was  his  intentional  wilful  misconduct 
and  therefore  cannot  concur  in  this  opinion. 


JANE   E.    HOPKINS    vs.   MICHIGAN    SUGAR   CO.  185 


SUPREME  COURT. 

.TANK  K.  HOPKINS. 

Claimant  and  Appellee, 
vs. 
MICHIGAN  SUGAR  COMPANY, 

a  Michigan  Corporation,  and 
NEW  ENGLAND  CASUALTY  COMPANY, 
a  Massachusetts  Corporation, 

Defendants  and  Appellants. 

1.  MASTER  AND  SERVANT — WORKMEN'S  COMPENSATION — ACCIDENT  ARIS- 
ING OUT  OF  EMPLOYMENT. 

To  justify  an  award  of  compensation  to  an  injured  employee  the 
accident  must  have  arisen  out  of  as  well  as  in  the  course  of 
his  employment;  the  two  are  separate  questions  to  be  determined 
by  different  tests:  "out  of"  points  to  the  cause  or  source  of  the 
accident,  while  "in  the  course  of"  relates  to  time,  place,  and 
circumstance. 

2.  SAME — RELATION  OF    SERVANT — INJURIES   OUTSIDE  OF    EMPLOYMENT. 
Where   the   decedent   was   in  the   employ   of  the  defendant  as   its 

chief  engineer,  and  had  supervision  of  the  installation  of  ma- 
chinery in  several  of  defendant's  plants  at  different  cities,  an  in- 
jury received  while  he  was  preparing  to  board  a  car  in  the  street 
by  slipping  and  falling  upon  icy  ground  in  a  city  in  which  his 
principal  office  and  the  main  plant  of  his  employer  was  situated, 
was  not  an  injury  which  arose  out  of  his  employment  under  Act 
No.  10,  Extra  Session  1912  (2  How.  Stat.  [2d.  Ed.]  §  3939  et  seq.), 
although  decedent  had  spent  the  day  at  one  of  the  branch  fac- 
tories in  a  distant  town  from  which  he  had  returned  to  the  city  in 
which  he  resided. 


Certiorari  to  the  Industrial  Accident  Board.  Submitted 
November  11,  1914.  Decided  January  4,  1915. 

Jane  E.  Hopkins  presented  a  claim  against  the  Michigan 
Sugar  Company  for  compensation  for  the  death  of  her  hus- 
band. An  order  granting  compensation  is  reviewed  by  con- 
testant on  certiorari.  Keversed. 


186  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


Brooks  &  Cook  (Hal  H.  SnvUli,  of  counsel),  for  claimant. 
Frank  J.  Riggs.  (Martin  J.  Cavanaugh,  of  counsel),  for  de- 
fendants. 

STEERED  J.  The  proceedings  in  this  case,  brought  here 
for  review  by  certiorari,  arose  under  Act  No.  10,  Pub.  Acts 
1912  (Extra  Session)  ;  (2  How.  Stat.  [2d  Ed.]  §  3939  et  seq.), 
and  involve  the  validity  of  an  award,  by  the  State  Industrial 
Accident  Board,  of  compensation  to  claimant  for  the  death  of 
her  husband  on  February  13,  1913,  against  his  employer,  the 
Michigan  Sugar  Company,  defendant. 

It  appears  from  the  finding  of  the  Board,  supported  by  com- 
petent evidence,  that  deceased  was  in  the  employ  of  said  com- 
pany as  its  chief  engineer,  supervising  the  installation  of  ma- 
chinery in,  and.  operation  of,  six  of  its  plants  located  at  Sag- 
inaw,  Bay  City,  Alma,  Croswell,  Caro  and  Sebewaiug.  He  re- 
sided at  Saginaw,  had  a  desk  at  the  office  of  the  company  in 
that  city  and  did  work  there  from  time  to  time,  but  had  no 
regular  office  hours,  and  was  engaged  much  of  his  time  visit- 
ing and  looking  after  the  different  factories,  as  directed  or  as 
circumstances  might  require.  He  received  an  annual  salary, 
with  his  traveling  expenses  paid  when  going  on  business  of  his 
employer.  He  sometimes  started  from  the  office  and  at  other 
times  from  his  home  when  making  such  trips. 

On  February  4,  1913,  he  left  Saginaw  in  the  morning  for 
Sebewaing,  to  visit  the  company's  plant  at  that  place.  A  train 
arrived  at  Saginaw  from  Sebewaing  at  5  :40  P.  M.  About  6  :40 
he  arrived  home  with  an  injury  to  his  head,  which  was  bleed- 
ing a  little  at  the  back  and  which  his  wife  cared  for.  He  de- 
tailed to  her,  and  subsequently  to  others,  how  it  occurred.  No 
one  is  shown  to  have  seen  the  accident.  He  spent  most  of  the 
following  day  at  the  office  and  the  day  after  attended  a  funeral 
in  Bay  City.  During  those  two  days  he  appeared  unwell,  com- 
plained of  a  severe  headache,  and  in  speaking  of  it  told  of  the 
accident  to  which  he  attributed  it.  From  that  time  he  grew 
worse,  suffered  a  partial  paralysis,  with  other  symptoms  of 


JANE    E.    HOPKINS    vs.   MICHIGAN   SUGAR   CO.  187 

bra iii  pressure,  and  died  on  February  13th.  Without  details, 
the  testimony  of  physicians  showed  that  his  death  was  caused 
lie  a  hemorrhage  resulting  from  a  small  fracture  about  one- 
half  inch  long  extending  from  the  vertex  of  the  skull  toward 
the  right  ear. 

It  is  claimed  and  found  by  the  Board  that  upon  arriving  at 
the  station  in  Saginaw,  upon  his  return  in  the  evening  from 
Sebewaing,  deceased  found  no  street  car  in  sight  and  started 
to  walk  along  Washington  Street  in  the  direction  of  both  his 
home  and  the  company's  office;  that  after  he  had  walked  a 
number  of  blocks  he  saw  a  street  car  coming  and  started  from 
the  sidewalk  intending  to  take  it;  that  the  ground  there  was 
icy  and  covered  with  snow,  and  he  sapped  and  fell,  receiving 
the  injury  which  eventually  resulted  fatally.  Material  parts 
of  this  finding  are  challenged  as  unsupported  by  any  compet- 
ent evidence;  no  witness  being  shown  to  have  seen  the  acci- 
dent. Much  clearly  incompetent  and  purely  hearsay  evidence 
produced  by  claimant  was  admitted  in  regard  to  it,  some  of 
which  showed  that  deceased  ran  to  catch  the  car  and  did  not 
notice  the  ice  until,  in  hurrying  over  it,  he  slipped  and  fell. 

Conceding,  however,  as  contended  by  claimant,  that  facts 
and  circumstances  properly  proven,  together  with  the  report 
of  accident  made  by  the  defendant  company  to  the  Industrial 
Accident  Board  as  required  by  statute,  furnish  sufficient  evid- 
ential support  for  the  findings  and,  accepting  them  as  true, 
we  are  yet  impelled  under  the  authorities,  to  the  view  that 
such  findings  fail  to  sustain  the  conclusion  of  law  by  the 
Board  that  such  accident  was  naturally  or  peculiarly  inciden- 
tal to  and  arose  out  of  deceased's  employment. 

To  justify  an  award  under  this  act  it  must  be  shown  that 
the  employee  received  "a  personal  injury  arising  out  of  and 
in  the  course  of  his  employment.''  -This  provision  is  adopted 
in  identical  words  from  the  English  workmen's  compensation 
act  and  presumably  with  the  meaning  previously  given  it 
there. 

It  is  well  settled  that,  to  justify  an  award,  the  accident 
must  have  arisen  "out  of  as  well  as  "in  the  course  of  the 


188  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

employment,  and  the  two  are  separate  questions  to  be  deter- 
mined by  different  tests,  for  cases  often  arise  where  both  re- 
quirements are  not  satisfied.  An  employee  may  suffer  an  ac- 
cident while  engaged  at  his  work  or  in  the  course  of  his  em- 
ployment which  in  no  sense  is  attributable  to  the  nature  of  or 
risks  involved  in  such  employment,  and  therefore  cannot  be 
said  to  arise  out  of  it.  An  accident  arising  out  of  an  employ- 
ment almost  necessarily  occurs  in  the  course  of  it,  but  the  con- 
verse does  not  follow,  1  Bradbury  on  Workmen's  Compensa- 
tion, p.  398.  "Out  of"  points  to  the  cause  or  source  of  the  ac- 
cident, while  "in  the  course  of"  relates  to  time,  place,  and  cir- 
cumstances. Fitzgerald  vs.  Clarke  &  Son,  2  K  B.  (1908)  p 
796. 

The  same  provision,  in  the  same  words,  is  found  in  the  Mas 
sachusetts  Workmen's  Compensation  Act.  In  McNicols'  Case, 
215  Mass.  497,  (102  N.  E.  697),  the  controlling  question  was 
whether  fatal  injuries  received  by  an  employee  through  blows 
and  kicks  administered  by  a  fellow-workman,  "in  an  intoxi 
cated  and  frenzied  passion,  arose  out  of  the  employment.  11 
appearing  that  the  assaulting  fellow-servant,  with  whom  de- 
ceased was  required  to  work,  was,  when  in  liquor,  known  to 
be  quarrelsome  and  dangerous,  and  unsafe  to  be  permitted  to 
work  with  his  fellow  employes,  the  court  held  that  "a  natural 
result  of  the  employment  of  a  peaceable  workman  in  company 
with  a  choleric  drunkard  might  have  been  found  to  be  an  at- 
tack by  the  latter  upon  his  companion;"  but  if  the  assaulter 
had  not  been  an  employe,  though  the  injury  would  yet  have 
been  received  in  the  course  of  the  employment  it  could  not 
have  been  said  to  have  arisen  out  of  it.  MitchAnson  vs.  Day 
Bros.,  Workmen's  Compensation  Reports  (1913),  p.  324.  Ii 
that  connection,  recognizing  as  controlling  authority,  and  dif- 
ferentiating, many  cited  English  cases  upon  the  subject,  the 
court  thus  clearly  and  comprehensively  states  the  rule: 

"It  is  sufficient  to  say  that  an  injury  is  received  'in  the  course  oi 
the  employment  when  it  comes  while  the  workman  is  doing  the  duty 
which  he  is  employed  to  perform.    It  'arises  out  of  the  employment 
when  there  is  apparent  to  the  rational  mind,  upon  consideration  of 


JANE   E.   HOPKINS   vs.   MICHIGAN   SUGAR   CO.  189 

all  the  circumstances,  a  casual  connection  between  the  conditions 
under  which  the  work  is  required  to  be  performed  and  the  resulting 
injury.  Under  this  test,  if  the  injury  can  be  seen  to  have  followed 
as  a  natural  incident  of  the  work  and  to  have  been  contemplated  by  a 
reasonable  person  familiar  with  the  whole  situation  as  a  result  of  the 
exposure  occasioned  by  the  nature  of  the  employment,  then  it  arises 
'out  of  the  employment.  But  it  excludes  an  injury  which  cannot 
fairly  be  traced  to  the  employment  as  a  contributing  proximate  cause, 
and  which  comes  from  a  hazard  to  which  the  workmen  would  have 
been  equally  exposed  apart  from  the  employment.  The  causative  danger 
must  be  peculiar  to  the  work  and  not  common  to  the  neighborhood. 
It  must  be  incidental  to  the  character  of  the  business  and  not  inde- 
pendent of  the  relation  of  master  and  servant.  It  need  not  have  been 
foreseen  or  expected,  but  after  the  event  it  must  appar  to  have  had 
its  origin  in  a  risk  connected  with  the  employment  and  to  have  flowed 
from  that  source  as  a  rational  consequence." 

The  question  of  whether  deceased  was  in  any  sense  within 
the  ambit  of  his  employment  at  the  time  and  place  of  the  acci- 
dent is  a  serious  one ;  but  conceding  that  the  injury  befell  him 
while  in  the  course  of  his  employment,  can  it  be  fairly  traced 
to  his  employment  as  a  contributing,  proximate  cause,  or  did 
it  come  from  a  hazard  to  which  he,  in  common  with  others, 
would  have  been  equally  exposed  apart  from  the  employment? 
No  direct  casual  relation  is  claimed  in  the  particular  that 
the  nature  of  the  business  of  manufacturing  sugar  in  itself 
exposes  its  employes  to  unusual  risk  or  danger  of  accident  of 
this  nature.  All  that  can  be  claimed  is  that  the  accident  re- 
sulted from  the  understood  extra  hazard  to  which  those  who 
travel  are  exposed,  and,  while  traveling  in  his  employer's  bus- 
iness he  was  protected  against  accidents  attributable  to  that 
extra  danger. 

Deceased's  home  and  headquarters  were  in  Saginaw.  He 
had  a  desk  in  the  office  of  the  company  where  he  did  some 
work.  One  of  the  six  factories  he  supervised  was  in  Saginaw. 
His  traveling  consisted  of  journeying  to  the  other  five  factor- 
ies from  time  to  time  as  occasion  required.  On  the  day  in 
question  he  had  made  such  a  journey  to  Sebewaing  and  re- 
turned to  Saginaw  in  safety.  ,At  the  time  of  the  accident  he 
was  in  his  home  city,  walking  along  the  street,  exposed  to' no 


190  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

more  or  different  hazards  of  travel  than  any  other  citizen,  no 
than  he  would  have  been  had  he  spent  the  day  at  the  com 
pany's  office  or  its  Saginaw  plant.  How  is  the  legal  aspect  o 
the  case  affected  by  his  having  gone  to  Sebewaing  during  the 
clay  when  it  appears  that  his  duties  of  the  day  were  en  dec 
and  he  had  returned  safely  to  Saginaw?  At  the  time  of  hi 
accident  he  was  passing  on  foot  along  a  familiar  highway,  up 
on  which  was  ice  and  snow — a  natural  condition  of  that  sea 
son  of  the  year — involving  an  increased  risk  and  added  clan 
ger  of  falling,  common  to  all  and  known  to  all.  When  h 
slipped  upon  the  snow-covered  ice  and  fell,  he  was  not  riding 
upon  nor  getting  on  or  off  any  conveyance,  public  or  private 
No  person  or  thing  connected  with  transportation  or  trave 
touched  or  threatened  him.  While  it  is  indicated  by  the  rec 
ord  that  he  desired  to  take  a  street  car  and  was  walking  o 
running  towards  one  for  that  purpose,  to  assert  that  he  wa 
injured  in  attempting  to  take  or  board  a  car  would  be  a  mis 
leading  overstatement.  He  slipped  and  fell  before  reaching 
"it.  apparently  such  a  distance  away  as  not  to  attract  the  at 
tention  of  those  on  the  car,  as  no  witnesses  to  the  acciden 
were  produced.  The  Board  found  that  "he  started  from  th< 
sidewalk  towards  the  car  with  the  intention  of  boarding  th< 
same"  and  the  employer's  report,  which  is  the  legal  basis  of 
such  finding,  shows  that  he  fell  "about  one-third  distance  be- 
tween sidewalk  and  car  track."  The  car  was  presumably  some- 
where on  the  track  at  the  time  but  just  where  is  not  disclosed. 

Slipping  upon  snow-covered  ice  and  falling  while  walking, 
or  running,  is  not  even  what  is  known  as  peculiarly  a  "street 
risk;"  neither  is  it  a  recognized  extra  hazard  of  travel  or  par 
ticularly  incidental  to  the  employment  of  those  who  are  callec 
upon  to  make  journeys  between  towns  on  business  missions. 

These  distinctions  are  recognized  and  the  rule  correctl; 
stated  in  an  opinion  of  the  Michigan  Industrial  Accident  Boarc 
filed  in  Warden  vs.  Commonwealth  Power  Company,  20  Det 
Leg.  News,  No.  39  (Dec.  27,  1913),  as  follows: 

"It  must  also  appear  that  the  injury  arose  out  of  the  employmenl 
and  was  a  risk  reasonably  incident  to  such  employment,  as  distin 


JANE   E.    HOPKINS    vs.    MICHIGAN    SUGAR   CO.  191 

guished  from  risks  to  which  the  general  public  is  exposed.  To  illus- 
trate: *  *  *  On  the  other  hand  it  might  be  fairly  said  that  one  of 
the  most  common  risks  to  which  the  general  public  is  exposed  is  that 
of  slipping  and  falling  upon  ice.  The  risk  is  encountered  by  people 
generally  irrespective  of  employment.  *  *  *." 

The  Board  also  referred  to  the  fact  that  claimant  was  upon 
his  own  premises,  as  of  some  force,  but  apparently  denied  an 
award  upon  the  ground  quoted,  which  is  well  supported  by 
former  decisions. 

In  the  late  case  of  Sheldon  vs.  Needham,  W.  C.  &  Ins.  Rep. 
of  1914,  p.  274,  a  servant  sent  to  mail  a  letter  slipped  in  the 
street,  upon  a  banana  peel  or  some  other  slippery  object, 
breaking  her  leg.  Citing  as  controlling  several  cases  involv- 
ing the  same  principle,  the  court  held  that,  although  claimant 
was  in  performance  of  the  exact  thing  ordered  done,  there 
could  be  no  awrard  because  the  accident  was  not  due  to  any 
special  or  extra  risk  connected  with  and  incidental  to  her  em- 
ployment, but  was  of  such  a  nature  as  to  be  equally  liable  to 
happen  under  like  circumstances  to  any  one  in  any  employ- 
ment, and  whether  employed  or  not.  This  unfortunate  acci- 
dent resulted  from  a  risk  common  to  all,  and  which  arose 
from  no  special  exposure  to  dangers  of  the  road  from 
travel  and  traffic  upon  it;  it  was  not  a  hazard  peculiarly  inci- 
dental to  or  connected  with  deceased's  employment,  and  there- 
fore is  not  shown  to  have  a  casual  connection  with  it,  or  to 
have  arisen  out  of  it. 

For  the  foregoing  reasons  we  are  impelled  to  the  conclusion 
that  the  order  and  award  of  the  Industrial  Accident  Board 
in  the  premises  cannot  be  sustained. 

Reversed. 


192  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

RACHEL  PINEL, 

Claimant  and  Appellant, 
vs. 
RAPID  RAILWAY  SYSTEM, 

Respondent. 

MASTER   AND    SERVANT — WORKMEN'S    COMPENSATION — DEPENDENT    RELA- 
TIVES— PARENT  AND  CHILD. 

A  woman  who  has  been  receiving  no  support  from  her  son,  and 
who  was  not  dependent  upon  him,  is  not  entitled  to  compensa- 
tion for  his  death  in  the  course  of  his  employment  under  Act 
No.  10,  Extra  Session  1912,  2  How.  Stat.  (2d.  Ed.)  §  3953;  since 
it  is  apparent  that  the  son  is  not  under  legal  obligation  to  sup- 
port his  parents  until  an  order  of  the  court  has  been  made  re- 
quiring him  to  contribute  thereto.  2  Comp.  Laws,  §  4487  (2 
How.  Stat.  [2d  Ed.]  3478).  The  situation  as  to  the  dependency 
is  to  be  determined  as  of  the  date  of  the  accident  to  decedent. 
Act  No.  10,  Extra  Session  1912,  §  7. 


Certiorari  to  the  Industrial  Accident  Board.  Submitted 
April  21,  1914.  Decided  January  29,  1915. 

Rachel  Pinel  presented  her  claim  against  the  Rapid  Rail- 
way System,  a  corporation,  for  compensation  caused  by  the 
death  of  her  son,  while  he  was  employed  by  said  company.  ,An 
order  denying  an  award  of  compensation  is  reviewed  by  claim- 
ant on  certiorari.  .Affirmed. 

Devine  d  .Snyder,  for  claimant. 

Corliss,  Leete  &  Moody,  and  Benjamin  S.  Pa  gel,  for  contest- 
ant. 

BIRD,  J.  Edward  Pinel  was  in  the  employe  of  the  respond- 
ent, and  was  killed  while  in  such  employment  on  May  29, 
1913.  He  left  him  surviving  neither  widow  nor  child.  He 
left  a  mother  83  years  of  age,  who  is  claimant  herein,  and  sev- 
eral brothers  and  sisters.  Application  was  made  to  the  In- 


RACHEL  PINEL  vs.  RAPID  RAILWAY  SYSTEM.  193 

dustrial  Accident  Board  on  behalf  of  claimant  for  an  award. 
After  hearing  the  proofs  the  award  was  denied  by  the  Arbi- 
tration Board,  on  the  ground  that  claimant  was  not  depend- 
ent on  the  deceased.  On  appeal  to  the  Industrial  Accident 
Board,  the  same  result  was  reached.  The  claimant  has  a  life 
lease  on  a  farm  of  87  acres  in  Macornb  county.  Her  son 
Charles  resides  with  her.  The  deceased,  Edward,  and  his 
brother  Thomas  were  the  owners  of  a  mortgage  against  the 
farm,  and  more  or  less  litigation  has  ensued  in  the  past  few 
years  between  them  and  claimant,  and  as  a  result  thereof  they 
have  been  unfriendly.  It  is  not  contended  Aat  the  claimant 
was  dependent  upon  the  deceased  by  reason  of  any  contribu- 
tions made  to  her  by  the  deceased,  but  by  reason  of  the  fact 
that  he  was  a  son  who  might  be  compelled  to  contribute  to 
her  support  by  2  Cornp.  Laws,  Sec.  4487  et  seq  (2  How.  Stat. 
[2d  Ed.]  Sec.  3478  et  seq.) 

The  question,  therefore,  presented  is  whether  the  claimant 
was  a  dependent  on  the  deceased  within  the  meaning  of  the 
compensation  law,  by  reason  of  the  provisions  of  2  Comp. 
Laws.  Sec.  4487  et  seq.  (2  How.  Stat.  [2d  Ed.]  Sec.  3478  et 
seq.) 

Section  7  of  part  II  of  the  compensation  law  provides  that : 

"Questions  as  to  who  constitute  dependents  and  the  extent  of  their 
dependency  shall  he  determined  as  of  the  date  of  the  accident  to  the 
employe,  and  their  right  to  any  death  benefit  shall  become  fixed  as  of 
such  time,  irrespective  of  any  subsequent  change  in  conditions."  Act 
No.  10,  Pub.  Acts  1912. 

The  claimant  did  not  belong  to  the  class  conclusively  pre- 
sumed by  the  compensation  law  to  be  a  dependent.  On  the 
date  of  the  accident  it  is  conceded  claimant  was  not  depend- 
ent by  reason  of  any  support  furnished  to  her  by  the  deceased. 
On  the  date  of  the  accident  she  was  not  dependent  on  the  de- 
ceased by  force  of  any  order  of  court  based  upon  section  4487 
et  seq.  A  son  is  always  under  moral  obligation  to  assist  his 
indigent  mother,  but  he  is  under  no  legal  obligation  to  do  so 
until  proceedings  under  the  statute  have  resulted  in  an  order 


194  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

compelling  him  to  do  so.  No  such  order  was  in  force  at  the 
time  of  the  accident;  therefore  we  must  conclude  that  he  was 
under  no  legal  obligation  at  that  time  to  support  his  mother 
See  Rees  vs.  Navigation  Co.  87  L.  T.,  661,  5  W.  0.  G.  117 
Schwanz  vs.  Wujek,  163  Mich.  492,  (128  N.  W.  731).  The 
most  that  can  be  said  of  the  statute  with  reference  to  the  ques 
tion  involved,  is  that  by  its  terms  a  court  of  competent  juris 
diction  might  have,  under  certain  contingencies,  compelled  the 
deceased,  if  able,  to  contribute  to  the  support  of  his  mother 
The  contention  of  claimant  cannot  be  sustained. 
The  order  of  the  Board  will  be  affirmed. 


SUPREME  COURT. 

KATHERINE  M.  KLAWINSKI, 

Applicant  and  Appellee, 
vs. 

LAKE  SHORE  &  MICHIGAN  SOUTHERN 
RAILWAY  COMPANY, 

Respondent  and  Appellant. 

MASTER    AND    SERVANT — WORKMEN'S    COMPENSATION    LAW — COURSE    OF 
EMPLOYMENT — RAILROADS — PERSONAL  INJURIES. 

A  section  laborer  upon  a  railroad  who  had  taken  refuge  in  a 
barn  during  a  storm  was  not  entitled  to  compensation  under 
the  employer's  liability  law  for  his  death  caused  by  a  stroke 
of  lightning  which  struck  the  barn:  the  injury  or  accident  did 
not  arise  out  of  or  in  the  course  of  his  employment,  nor  was 
death  by  lightning  peculiar  to  the  industry  or  occupation  in 
which  he  was  engaged.  Act  No.  10,  Extra  Session  1912  (2  How. 
Stat.  [2d.  Ed.]  §3939.) 

Certiorari  to  the    Industrial    Accident  Board.     Submitted 
June  18,  1914.    Decided  April  19,  1915. 


KLAWINSKI  vs.  L.  S.  &.  M.  S.  RAILWAY  CO.  195 

Katherine  M.  Klawinski  presented  a  claim  against  the  Lake 
Shore  &  Michigan  Southern  Railway  Company  for  the  death 
of  her  husband  in  defendant's  employ.  From  an  order  award- 
ing compensation  respondent  brings  certiorari.  Reversed. 

Angelly  Boynton,  McMillan,  Boclman  cC-  Turner,  for  appel- 
lant. 

W.  Glenn  Cowell,  for  appellee. 

McALVAY,  J.  In  its  return  to  a  writ  of  certiorari  in  this 
cause  the  Industrial  Accident  Board  certifies,  as  follows: 

"That  at  the  time  of  the  injury  for  which  compensation  was  sought 
herein,  to  wit:  on  the  15th  day  of  May,  1913,  respondent  had  accepted 
to  become  subject  to  the  terms  Of  Act  No.  10,  Pub.  Acts  1912  (Special 
Session),  commonly  known  as  the  'Workmen's  Compensation  Law.' 
That  on  the  28th  day  of  July,  1913,  said  Katherine  Klawinski  made 
application  to  the  board  of  arbitration  of  a  claim  to  compensation 
from  respondent  for  the  death  of  her  husband,  Frank  Klawinski,  on 
the  15th  day  of  May,  1913,  while  in  its  employ.  That  a  Committee  of 
Arbitration  was  duly  formed  which,  after  hearing  the  parties,  made 
an  award  that  respondent  pay  to  said  applicant  the  sum  of  $5.24 
per  week  for  a  period  of  300  weeks.  That  thereafter  an  appeal  was 
taken  by  respondent  from  such  award  to  said  board  on  the  ground 
that  deceased  did  not  receive  an  injury  arising  out  of  and  in  the 
course  of  his  employment.  That  on  the  20th  day  of  November,  1913, 
an  order  was  made  by  said  board,  affirming  the  award  of  said  com- 
mittee. The  facts  involved  in  this  cause  appear  in  the  agreed  state- 
ment hereto  attached.  The  board  does  certify  that  said  statement  of 
facts  is  correct." 

The  following  is  the  stipulation  adopted  by  respondent  board 
as  its  finding  of  facts  in  the  case: 

"STATE  OF  MICHIGAN— Before  the  Industrial  Accident  Board. 

"Katherine  Klawinski, 

Applicant, 
v. 
"Lake  Shore  &  Michigan  Southern  Railway  Company, 

Respondent. 

"It  is  hereby  stipulated  and  agreed  between  the  parties  hereto  by 
their  respective  attorneys  that  the  facts  out  of  which  controversy  in 


196  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

the  above  entitled  cause  arises  and  which  it  is  desired  may  be  made 
a  part  of  the  return  to  the  writ  of  certiorari  heretofore  issued  from 
the  Supreme  Court  in  this  cause  to  said  Industrial  Accident  Board, 
are  as  follows: 

"Frank  Klawinski,  applicant's  husband,  was  employed  prior  to  and 
on  the  15th  day  of  May,  1913,  by  respondent  as  a  section  laborer.  On 
said  date  he  was  working  as  a  member  of  a  section  gang  of  six  men 
on  respondent's  roadway  near  Bronson,  Mich.  During  the  afternoon 
of  that  day  a  violent  wind  and  rain  storm  arose.  The  foreman  of 
the  gang  said,  'Boys,  we  better  get  out  of  the  storm.'  There  was  a 
barn  near  by,  where  the  section  gang  had  been  in  the  habit  of  taking 
refuge  from  storms.  The  assistant  foreman  said,  'Come  and  go  to  the 
barn.'  The  foreman  directed  one  of  the  men,  named  Kolassa,  to  go 
for  the  coats  and  waited  for  him.  While  he  did  so,  the  rest  of  the 
gang,  including  Klawinski,  went  to  the  barn,  the  foreman  and  Kolassa 
going  to  a  nearby  tenant  house.  While  in  the  barn,  and  during  said 
storm,  Klawinski  was  killed  by  a  bolt  of  lightning.  During  the  time 
the  men  were  in  the  barn  no  work  was  performed.  At  such  time  as 
they  had  previously  gone  in  this  barn  for  shelter  the  men  had  been 
paid  for  their  time  and  were  so  paid  on  this  occasion.  The  assistant 
foreman  was  subject  to  the  authority  of  the  foreman  and  had  charge 
of  the  men  during  his  absence.  It  was  in  the  presence  of  the  fore- 
man that  he  said,  'Come  and  go  to  the  barn.' " 

The  only  contention  in  the  case  made  by  appellent  is  that 
the  death  of  Frank  Klawinski,  for  which  compensation  is  asked 
by  and  was  granted  to  his  widow,  did  not  result  from  "a  per- 
sonal injury  arising  out  of  and  in  the  course  of  his  employ- 
ment," and  within  the  meaning  of  the  workmen's  compensa- 
tion law,  and  therefore  the  Industrial  Accident  Board  erred 
in  affirming  the  award  of  the  committee  of  arbitration. 

The  proposition  is  fundamental  that  a  claimant  is  entitled 
only  to  an  award  of  compensation  for  "a  personal  injury  aris- 
ing out  of  and  in  the  course  of  his  employment."  To  deter- 
mine whether  the  injury  in  the  instant  case  is  within  the 
meaning  of  the  law  and  arose  "out  of  and  in  the  course  of  his 
employment"  we  must  consider  the  nature  and  character  of 
that  employment. 

Decedent  was  employed  at  the  time  as  a  section  laborer, 
one  of  a  section  gang  of  six  men,  working  upon  defendant's 
roadway  at  the  usual  and  ordinary  work  performed  by  rail- 
road section  men,  in  which  it  may  be  said  as  a  general  propo- 


KLAWINSKI  vs.  L.  S.  &.  M.  S.  RAILWAY  CO.  197 

sition  there  is  no  use  of  or  work  performed  in  connection  with 
electrical  machinery  or  appliances,  nor  any  unusual  proxim- 
ity to  such  machinery  or  appliances.  There  is  no  doubt  that 
it  was  the  legislative  intent  to  compensate  workmen  for  in- 
juries resulting  from  industrial  accidents,  and  that  such  com- 
pensation is  charged  against  the  industry  because  it  is  respon- 
sible for  the  injury. 

As  far  as  the  instant  case  is  concerned  the  scope  of  the  Eng- 
lish statute  may  be  considered  identical  with  the  Michigan 
workmen's  compensation  law.  Several  cases  have  been  passed 
upon  by  the  English  courts  arising  under  the  English  law 
where  compensation  was  sought  for  injury  by  lightning  and, 
except  in  cases  where  the  employment  necessarily  placed  the 
employee  at  the  time  of  his  injury  in  a  position  subjecting 
him  to  unusual  risk  from  lightning,  compensation  has  been  de- 
nied. 

In  a  case  identical  with  the  instant  case,  where  a  workman 
employed  as  a  road  laborer  picking  stones  and  clearing  out 
gutters  along  a  highway,  during  a  thunderstorm  was  killed 
by  lightning,  the  court  held  that  the  accident  causing  death 
did  not  arise  out  of  the  workman's  employment.  The  court 
said: 

"I  am  unable  to  find  any  special  or  peculiar  danger  from  lightning 
to  which  these  men  (deceased  and  his  companion)  were  exposed  from 
working  on  the  road.  No  expert  or  other  evidence  was  offered  to  me 
that  their  position  on  the  road  exposed  them  to  any  greater  risk  of 
being  struck  by  lightning  than  if  they  had  been  working  in  a  field 
or  a  garden  or  a  factory.  The  antecedent  probability  that  they  would 
be  struck  by  lightning  was  no  greater  in  their  case  than  it  was  in 
the  case  of  any  other  person  who  was  within  the  region  over  which 
the  thunderstorm  passed." 

Kelly  v.  Kerry  County  Council,  42  Ir.  L.  T.  E.  23,  1.  B.  W. 
C.  C.  194. 

This  question  has  been  before  the  industrial  commission  of 
Wisconsin  in  the  case  of  Lindauer  O'Connel  Co.  vs.  Hoenig, 
where  the  widow  of  John  Hoenig,  who  came  to  his  death  by  a 
stroke  of  lightning  while  he  was  employed  by  the  Company  at 


198  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

work  on  a  dam  in  the  Fox  River,  taking  planks  out  of 
water  above  the  dam,  filed  a  claim  for  compensation  on  a< 
count  of  his  death.  Among  other  things,  the  commission  foun< 
as  a  fact  that  "at  the  time  and  place  of  the  injury  to  Johi 
Hoenig  resulting  in  his  death,  deceased  was  not  exposed  to 
hazard  from  lightning  stroke  peculiar  to  the  injury    (indus 
try),  or  substantially  differing  from  the  hazard  from  light- 
ning of  any  other  out-of-door  work,"  and,  further,  that  hi 
death  "was  not  proximately  caused  by  any  accident  within  th< 
meaning  of  the  term  as  used  in  chapter  599,  Laws  of  Wiscon- 
sin, 1913."     In  a  memorandum  opinion  filed  in  the  case,  th< 
commission,  among  other  things,  said : 

"Lightning  stroke  is  not  popularly  spoken  of  as  an  accident  when 
it  comes  from  the  action  of  the  elements  without  the  agency  of  niai 
When   the  agency    (industry)    through  the  agency   of  man   combine 
with  the  elements  and  produces  injury  to  the  employee  by  lightning 
stroke,  it  may  well  be  said  that  the  injury  grows  out  of  the  employ- 
ment and  is  accidental.     Such  has  been  the  decision  of  the  Englisl 
courts  under  the  English  compensation  act.     We  are  aware  that  th( 
language  of  the  English  act  differs  from  the  language  of  our  act,  bul 
if  we  accept  the  construction  of  the  legislative  committee  which  drei 
the  act,  then   we  find  the  meaning  of  the  two  acts  in   this   res] 
identical.      Clearly,    the   industry   may   be   and   ought  to   be   charge 
with  the  burden  resulting  from  hazards  of  the  industry  itself.    *  * 
We  have  no  desire  to  pass   on  the  question  of  public  policy.    That 
function  is  wholly  within  the  province  of  the  legislature.    We  merely 
desire   to   correctly  interpret  the  legislative   intent.     The   legislative 
committee  in  its  report  says  that  'compensation  shall  be  paid  when 
the  injury  grows  out  of  the  employee's  employment — it  makes  no  dif- 
ference who  is  to  blame;  it  is  sufficient  that  the  industry  caused  the 
injury.'    So  in  the  case  of  lightning  stroke,  if  we  can  find  as  a  fact 
that  the   injury  grew  out  of  the   employment,  or  that  the  industry 
caused  the  injury,  then  undoubtedly  compensation  should  be  paid. 

"Assuming  the  law  to  provide  compensation  for  industrial  acci 
dents  only — those  growing  out  of  the  employment  and  caused  by  the 
industry — we  must  approach  the  consideration  of  each  case  of  injury 
by  lightning  on  the  question  of  fact.  Did  the  injury  grow  out  of  the 
employment  and  did  the  industry  cause  the  injury?  The  act  provides 
for  compensation  for  'personal  injuries  accidentally  sustained  *  * 
where  the  injury  is  proximately  caused  by  accident.'  We  are  of  the 
opinion  that  this  language  refers  to  industrial  accidents;  those  causec 
by  the  industry  and  chargeable  to  the  industry,  and  does  not  apply  to 


KLAWINSKI  vs.  L.  S.  &.  M.  S.  RAILWAY  CO.  199 

injuries  resulting  from  those  forces  of  nature  described  in  the  com- 
mon law  as  acts  of  God,  such  forces  as  are  wholly  uncontrolled  by 
man." 

The  prayer  for  compensation  was  denied  and  the  case  dis- 
missed. 

Our  quotations  from  the  foregoing  opinion  are  made  from  a 
certified  copy  which  was  furnished  the  court  by  counsel  for 
appellant,  who  stated  that  they  were  unable  to  find  that  the 
opinions  of  the  industrial  commission  of  Wisconsin  were  offi- 
cially published. 

It  is  our  opinion  that  in  the  instant  case  claimant's  hus- 
band did  not  come  to  his  death  as  the  result  of  "a  personal 
injury  arising  out  of  and  in  the  course  of  his  employment," 
within  the  meaning  of  the  workmen's  compensation  law.  It 
is  clear  from  the  stipulated  facts  that  this  injury  was  in  no 
way  caused  by  or  connected  with  his  employment  through  any 
agency  of  man  which  combined  with  the  elements  to  produce 
the  injury;  that  plaintiff's  decedent  by  reason  of  his  employ- 
ment was  in  no  way  exposed  to  injuries  from  lightning  other 
than  the  community  generally  in  that  locality. 

Under  the  stipulated  facts  in  the  case  the  Industrial  Acci- 
dent Board  was  in  error  in  affirming  the  award  of  the  com- 
mittee of  arbitration,  and  its  decision  and  determination  is 
hereby  reversed  and  set  aside. 


200 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

CHARLES  WEAVER, 

.Appellee  and  Claimant, 
vs. 

MAXWELL  MOTOR  COMPANY, 

Defendant  and  Appellant. 

MASTER  AND  SERVANT — INJURIES  TO  SERVANT — COMPENSATION. 
Act  No.  10,  Pub.  Acts  1912,  pt.  2,  §  9,  provides  that,  while  the  in- 
capacity for  work  resulting  from  an  injury  is  total,  the  employer 
shall  pay  a  weekly  compensation  equal  to  one-half  of  the  em- 
ploye's wages,  but  not  to  exceed  $10.  Section  10  declares  that, 
while  the  incapacity  is  partial,  the  injured  employe  shall  be  en- 
titled to  compensation  equal  to  one-half  the  difference  between 
his  average  weekly  wages  before  the  injury  and  those  he  is  able 
to  earn  thereafter,  that  for  the  loss  of  an  eye  he  shall  recover 
as  compensation  50  per  cent  of  the  average  weekly  wages  during 
100  weeks,  and  that  the  loss  of  both  eyes  or  both  legs  shall 
constitute  a  total  and  permanent  disability.  The  claimant  had 
in  a  previous  accident  lost  one  eye.  Thereafter  he  lost  his  re- 
maining eye. 

HELD:  That  the  injury  could  not  be  considered  as  a  total  dis- 
ability, and  he  was  entitled  only  to  one-half  of  his  weekly  wages 
for  100  weeks. 


Certiorari  to  Industrial  .Accident  Board.  Proceedings  by 
Charles  Weaver,  under  the  Workmen's  Compensation  Act, 
against  the  Maxwell  Motor  Company,  to  obtain  compensation 
for  personal  injuries.  The  claimant  was  awarded  compensa- 
tion by  the  Industrial  Accident  Board,  and  the  employer 
brings  certiorari.  Remanded  for  further  proceedings. 

Fred  L.  Vanderveer  of  Detroit  (Cummins,  Nichols  &  Rhoads 
of  Lansing,  of  counsel),  for  appellant. 
Person,  Shields  &  Silsbee,  of  Lansing,  for  appellee. 

MOORE,  J.     This  case  is  certiorari  to  the  Industrial  Acci- 


CHARLES  WEAVER  vs.  MAXWELL  MOTOR  CO.  201 

dent  Board.    The  facts  are  stipulated.    We  quote  sufficiently 
for  the  purposes  of  this  case: 

"The  character  and  nature  of  the  injury  and  the  result  thereof  is 
as  follows:  The  end  of  a  crowbar  struck  me  in  the  left  eye,  causing 
an  injury  which  has  permanently  destroyed  the  sight  of  this  member. 
Due  to  an  injury  received  about  seven  years  ago  while  working  in 
a  dye  works,  applicant  received  an  injury  which  cost  him  practically 
the  total  loss  of  sight  of  the  right  eye.  At  the  present  time  the  sight 
of  both  eyes  is  limited  only  to  a  perception  of  light.  Applicant  re- 
ceived no  injury  to  his  right  eye  due  to  the  accident  of  July  3rd, 
1913,  to  the  left  eye.  *  *  * 

"Applicant  contends  that  by  reason  of  the  loss  of  his  left  eye,  due 
to  the  accident  of  July  3rd,  1913,  and  the  loss  of  the  right  eye,  due  to 
the  accident  of  some  seven  years  ago  that  he  is  now  totally  and 
permanently  incapacitated  from  work  and  therefore  entitled  to  com- 
pensation up  to  the  limit  allowed  by  the  act,  viz:  four  thousand  dol- 
lars. Respondent  claims  that  it  is  liable  only  for  the  injury  which 
was  received  while  in  its  employ,  viz:  the  loss  of  the  left  eye,  and 
should  pay  compensation  for  but  one  hundred  weeks  for  a  total  amount 
of  one  thousand  dollars." 

The  ruling  of  the  Industrial  Accident  Board  was  as  follows : 

"This  cause  having  come  on  to  be  heard  before  the  full  board  on 
stipulation  and  waiver,  agreeing  among  other  things  that  the  applicant 
by  the  accident  in  question  lost  the  sight  of  his  only  eye,  the  result 
being  blindness  and  total  incapacity  for  labor,  and  the  same  having 
been  argued  by  counsel  and  written  brief  filed  therein,  and  due  con- 
sideration thereof  having  been  had  by  the  board;  it  is  ordered  and 
adjudged  that  said  applicant  is  entitled  to  receive  and  recover  from 
said  respondents  compensation  at  the  rate  of  $10.00  per  week  for  a 
period  of  four  hundred  weeks  from  the  date  of  accident  in  said 
cause,  said  compensation  to  be  paid  in  weekly  payments  in  accordance 
with  the  provision  of  the  Workmen's  Compensation  Law." 

The  questions  involved  call  for  a  construction  of  portions 
of  Act  10  Extra  Session  of  1912. 
Section  9,  Part  2  of  the  Act  reads : 

"While  the  incapacity  for  work  resulting  from  the  injury  is  total, 
the  employer  shall  pay  or  cause  to  be  paid,  as  hereinafter  provided, 
to  the  injured  employe,  a  weekly  compensation  equal  to  one-half  his 
average  weekly  wages,  but  not  more  than  $10.00  nor  less  than  $4.00  a 
week ;  and  in  no  case  shall  the  period  covered  by  such  compensation 


202  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

be  greater  than  five  hundred  weeks,  nor  shall  the  total  amount  of  all 
compensation-  exceed  $4,000." 

Section  10,  of  Part  2,  provides  in  part  as  follows: 

"While  the  incapacity  for  work  resulting  from  the  injury  is  partial, 
the  employer  shall  pay  or  cause  to  be  paid,  as  hereinafter  provided, 
to  the  injured  employe,  a  weekly  compensation  equal  to  one-half  the 
difference  between  his  average  weekly  wages  before  the  injury  and 
the  average  weekly  wages  which  he  is  able  to  earn  thereafter,  but  not 
more  than  $10  a  week;  and  in  no  case  shall  the  period  covered  by  such 
compensation  be  greater  than  three  hundred  weeks  from  the  date  of 
injury.  In  cases  included  by  the  following  schedule,  the  disability  in 
each  such  case  shall  be  deemed  to  continue  for  the  period  specified 
and  the  compensation  so  paid  for  such  injury  shall  be  as  specified 
therein,  to-wit:  *  *  *  For  the  loss  of  an  eye,  fifty  per  centum  of 
average  weekly  wages  during  one  hundred  weeks;  the  loss  of  both 
hands,  or  both  arms,  or  both  feet,  or  both  legs,  or  both  eyes,  or  of  any 
two  thereof,  shall  constitute  total  and  permanent  disability  to  be 
compensated  according  to  the  provisions  of  Section  9." 

Counsel,  upon  the  oral  argument  and  in  "the  printed  briefs 
stated  that  after  diligent  search  they  were  unable  to  find  a 
case  in  point.  Since  the  case  was  submitted  counsel  for  the 
claimants  has  called  the  attention  of  the  court  and  opposing 
counsel  to  the  case  of  State  ex.  rel.  Garwin  vs.  District  Court, 
et  al.,  151  N.  W.  K.  910,  which  is  a  case  on  all  fours  as  to  the 
facts.  It  is  not  a  precedent  in  the  instant  case  however,  be- 
cause the  Minnesota  Statute  contains  language  not  found  in 
the  Michigan  Statute  reading  "if  an  employe  receive  an  injury 
which  of  itself  would  only  cause  permanent  partial  disability, 
but  which  combined  with  a  previous  disability  does  in  fact 
cause  permanent  total  disability,  the  employer  shall  only  be 
liable  for  the  permanent  partial  disability  caused  by  the  sub- 
sequent injury,"  and  it  was  held  the  compensation  should  be 
based  upon  the  permanent  partial  disability,  and  not  as 
claimed  by  the  appellant  on  the  basis  of  permanent  total  dis- 
ability. 

It  must  be  confessed  that  the  provisions  of  the  Michigan 
Statute  are  so  ambiguous  as  not  to  be  free  from  doubt  as  is 
evidenced  by  the  diverse  constructions  put  upon  it  by  the  able 


CHARLES  WEAVER  vs.  MAXWELL  MOTOR  CO.  203 

counsel  employed  in  the  case  before  us.  All  of  its  provisions 
however  should  be  given  effect  if  possible. 

The  compensation  fixed  in  Section  9  must  be  based  upon 
the  fact  that  the  total  incapacity  for  work  resulted  from  the 
injury. 

Section  10  deals  with  the  partial  incapacity  for  work  re- 
sulting from  the  injury  and  fixes  the  compensation  and  then 
proceeds  "for  the  loss  of  an  eye  fifty  per  centum"  etc.,  *  *  * 
"the  loss  *  *  *  of  both  eyes  *  *  *  shall  constitute  total  and 
permanent  disability." 

In  the  instant  case  the  loss  of  the  first  eye  was  a  partial 
disability  for  which  if  our  Workmen's  Compensation  Law  had 
been  in  existence  the  then  employer  would  have  been  liable, 
and  for  which  disability  the  present  employer  was  in  no  de- 
gree the  cause.  The  loss  of  the  second  eye  standing  by  itself 
was  also  a  partial  disability  and  of  itself  did  not  occasion  the 
total  disability.  It  required  that  in  addition  to  the  results  of 
the  disability  occasioned  by  the  accident  of  seven  years  ago, 
there  should  be  added  the  results  of  the  partial  disability  of 
the  recent  accident  to  produce  the  total  disability.  The  ab- 
sence of  either  accident  would  have  left  the  claimant  partially 
incapacitated.  We  think  it  clear  the  total  incapacity  cannot 
be  entirely  attributed  to  the  last  accident.  It  follows  that  the 
compensation  should  be  based  upon  partial  incapacity  and  it 
is  so  ordered. 

The  case  will  be  remanded  for  further  proceedings. 


204  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

A.  HARRY  GIGNAC, 

Claimant  and  Appellee, 
vs. 

STUDEBAKER  CORPORATION, 

Contestant  and  Appellant. 

WORKMEN'S  COMPENSATION — WILFUL  INTENTIONAL  MISCONDUCT. 

Claimant,  a  car  checker,  was  injured  while  passing  between  cars  to 

which  an  engine  was  attached.     He  placed  his  foot  on  a  coupling 

and  when  the  engine  backed,  his  foot  was  caught  and  injured. 

HELD:  Claimant  was  not  guilty  of  such  wilful  misconduct  as 
would  preclude  his  receiving  compensation  under  the  terms  of 
the  Workmen's  Compensation  Law. 


Certiorari  to  the  Industrial  Accident  Board,  to  review  the 
order  of  the  board  in  awarding  compensation  to  A.  Harry  Gig- 
nac;  while  in  the  employ  of  the  Studebaker  Corporation.  Af- 
firmed. 

F.  J.  Ward,  of  Detroit  for  defendant  and  appellant.  No 
appearance  for  claimant. 

BROOKE,  C.  J.  The  facts  involved  in  this  case  may  be 
briefly  stated  as  follows :  The  claimant,  a  young  man  about  20 
years  of  age,  was  employed  by  the  defendant  corporation  as  a 
checker.  At  the  rear  of  the  plant  operated  by  appellant  was 
a  side-track  of  the  railroad  company,  running  along  the  side 
of  the  platform  where  empty  cars  were  placed  to  be  loaded 
with  automobiles.  It  was  claimant's  duty  to  check  each  auto- 
mobile as  it  was  placed  in  the  car.  When  the  string  of  cars 
was  loaded  it  was  customary  to  remove  it  to  anothei .  track 
a  short  distance  away  from  the  platform.  On  the  evening  be- 
fore the  accident  claimant  had  checked  a  string  of  cars  which 
stood  beside  the  platform.  Returning  to  his  work  the  follow- 


A.  HARRY  GIGNAC  vs.  STUDEBAKER  CORPORATION.        205 

ing  morning,  he  found  that  those  cars  had  been  removed  from 
the  front  of  the  platform  to  the  other  side-track.  Desiring 
in  assure  himself  that  he  had  properly  checked  the  automo- 
biles in  this  particular  string  of  cars,  he  crossed  over  to  the 
track  upon  which  they  stood,  and  there  made  the  necessary 
examination.  Returning  to  the  plant  he  found  that  in  his  ab- 
sence another  string  of  cars  was  being  placed  upon  the  track 
in  front  of  the  platform,  the  engine  being  still  attached  there- 
to. Without  stopping  to  see  where  the  trainmen  were  and 
without  knowing  but  what  they  were  signalling  this  train  to 
back  up  or  go  ahead,  he  attempted  to  cross  through  between 
the  watertank  and  the  end  car  and  in  so  doing  he  placed  his 
right  foot  on  a  coupling.  The  engine  came  back  and  caught 
his  foot,  crushing  it  so  that  it  was  necessary  to  amputate  his 
five  toes. 

Compensation  for  said  injury  was  allowed  by  the  arbitra- 
tion board,  which  award  was  afterwards  affirmed  by  the  In- 
dustrial Accident  Board.  But  one  question  is  raised  upon  the 
record.  It  is  the  claim  of  the  appellant  that  the  claimant  was 
guilty  of  intentional  and  wilful  misconduct  as  a  matter  of 
law.  Section  2  of  part  2  of  the  Public  Acts  of  Michigan,  Ex- 
tra Session,  1912,  is  as  follows: 

"If  the  employe  is  injured  by  reason  of  his  intentional  and  wilful 
misconduct,  he  shall  not  receive  compensation  under  the  provisions 
of  this  act." 

Appellant  cites  and  relies  upon  the  following  cases:  John- 
son v.  Marshall  Sons  &  Co.,  22  T.  L.  R.  565,  75  L.  J.  K.  B.  868 ; 
Hill  v.  Grandy  Consolidated  Mines,  12  B.  O.  118,  1  B.  C.  W. 
436;  Johnson  v.  Marshall  Sons  &  Co.,  94  L.  T.  828;  8  W.  C.  C. 
10;  Leishman  v.  William  Dixon,  47  Scotch  L.  R.  410,  3  B.  W. 
C.  C.  560 ;  John  v.  Albion  Coal  Co.,  4  W.  C.  C.  15 ;  George  v. 
Glasgow  Coal  Co.,  78  L.  J.  K.  B.  47,  25  T.  L.  R.  57.  These 
cases  all  arose  in  foreign  jurisdictions  and  under  statutes 
containing  somewhat  different  language  from  that  used  in  the 
Michigan  Act.  The  question  has  twice  been  presented  to  this 
court,  in  the  case  of  Clem  v.  Chalmers  Motor  Co.,  178  Mich. 


206  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

340,  and  again  in  the  case  of  Rayner  v.  Sligk  Furniture 
180  Mich.  168. 

While  it  is  quite    clear    that    the    claimant's    injury  wi 
brought  about  by  his  own  gross  negligence,  we  are  of  opinioi 
that  it  cannot  be  said  as  a  matter  of  law  that  he  was  guilty 
such  intentional  and  wilful  misconduct  as  would  defeat  hii 
recovery.     Our  own  adjudicated  cases  cited  above  are  con- 
clusive upon  this  point. 

The  judgment  is  affirmed. 


GEORGE  HIRSCHKORN, 

Claimant  and  Appellee, 
vs. 
FIEGE  DESK  COMPANY, 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 

Respondents  and  Appellants. 

1.  MASTER  AND  SERVANT —  WORKMEN'S   COMPENSATION — PARTIAL  Loss 
OF  EYE. 

On  ceritorari  to  an  award  of  the  Industrial  Accident  Board  allow- 
ing thirty-five  weeks'  compensation  for  the  partial  loss  of  claim- 
ant's eye,  the  award  could  not  be  sustained  under  section  9, 
Act  No.  10,  Extra  Session  1912,  2  How.  Stat.  (2d  Ed.)  §3956, 
relating  to  total  incapacity,  nor  under  section  10  of  the  statute, 
unless  its  provisions  for  partial  incapacity  cover  such  injury, 
said  section  providing  that  the  employer  shall  pay  weekly  com- 
pensation for  partial  incapacity  to  work. 

2.  SAME — PARTIAL  INCAPACITY. 

No  support  for  an  award  for  the  partial  loss  of  an  eye  can  be  found 
in  the  schedule  of  injuries  found  in  said  section  10;  the  provi- 
sions of  the  statute  relate  only  to  the  loss  of  an  eye  and  an  award 


GEORGE  HIRSCHKORN  vs.  FIEGE  DESK  CO.  207 

on  the  theory  of  future  incapacity  must  be  restricted  to  claim- 
ant's earning  capacity  in  the  employment  in  which  he  was  injured 
at  the  time  of  the  accident.  Accordingly,  a  claimant  who  con- 
cedes that  he  could  do  his  work  as  well  after  his  injury  as  before 
and  is  receiving  equal  wages,  could  not  obtain  compensation 
under  the  Workmen's  compensation  law  although  it  was  found  by 
the  accident  board  that  the  usefulness  of  the  injured  eye  was  im- 
paired to  an  extent  of  one-third  of  its  vision. 


Certiorari  to  the  Industrial  Accident  Board.  Submitted 
November  24,  1914.  Decided  January  29,  1915. 

George  Hirschkorn  presented  his  claim  to  the  Industrial 
Accident  Board  against  the  Fiege  Desk  Company  for  injuries 
sustained  in  its  employ.  From  an  order  awarding  compen- 
sation contestants,  Fiege  Desk  Company  and  Michigan  Work- 
men's Compensation  Mutual  Insurance  Company,  bring  cer- 

tiorari.    Reversed  and  award  vacated. 

i 

Person,  Shields  &  Silsbee,  for  claimant. 
Beaumont,  Smith  &  Hawis,  for  contestants. 

BIRD,  J.  While  the  claimant  was  employed  by  the  Fiege 
Desk  Company  at  Saginaw,  operating  a  certain  machine,  a 
piece  of  emery  flew  into  his  left  eye  and  injured  it.  The  emery 
was  removed,  but  the  eye  became  inflamed  and  iritis  set  in. 
He  was  totally  incapacitated  for  work  for  nine  weeks,  and  full 
compensation  therefor  was  paid  to  him  by  respondents.  When 
claimant  returned  to  work,  the  inflammation  and  iritis  had 
subsided  and  his  recovery  was  complete,  save  for  the  fact  that 
the  injury  left  a  scar  in  the  center  of  the  cornea,  covering  the 
pupil,  which  causes  a  blur  and  prevents  him  from  seeing  an 
object  clearly.  This  condition  reduced  the  vision  of  his  eye 
nearly  one-half,  and  is  permanent,  but  it  is  not  thought  the 
vision  will  be  further  reduced  as  a  result  of  the  injury.  Since 
claimant  returned  to  his  work,  he  has  been  doing  the  same 
work  as  before  the  injury,  arid  is  receiving  the  same  wages.  On 
this  state  of  facts,  the  Board  made  a  further  allowance,  and 
in  so  doing,  said  in  part: 


208  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"That,  the  usefulness  of  the  left  eye  of  applicant  having  been 
destroyed  by  said  injury  to  the  extent  of  more  than  one-third,  and 
somewhat  less  than  one-half,  the  applicant  was  entitled  to  an  award 
of  35  weeks'  compensation  in  addition  to  the  amount  theretofore  paid, 
that  being  the  fair  and  reasonable  percentage  of  the  100  weeks'  com- 
pensation which  the  law  provides  for  the  full  loss  of  the  eye." 

This  award  is  questioned  by  respondents,  and  it  is  argued 
that  there  is  no  authority  in  the  law  by  which  such  an  award 
can  be  justified.  If  the  award  is  to  stand,  some  authority  in 
the  law  must  be  found  to  support  it.  It  is  obvious  that  it  can- 
not be  sustained  under  Act  No.  10,  part  II,  §  9,  Pub.  Acts, 
1912  (Extra  Session),  because  claimant  is  not  wholly  incapa- 
citated. It  must  then  be  sustained,  if  at  all,  under  section  10, 
providing  for  partial  incapacity.  Section  10  provides  that: 

"while  the  capacity  for  work  resulting  from  the  injury  is  partial, 
the  employer  shall  pay,  or  cause  to  be  paid  as  hereinafter  provided,  to 
the  injured  employe,  a  weekly  compensation  equal  to  one-half  the 
difference  between  his  average  weekly  wages  before  the  injury  and 
the  average  weekly  wages  which  he  is  able  to  earn  thereafter,"  etc. 

There  is  then  added  to  the  section  a  schedule  of  specific  in- 
juries fixing  the  number  of  weeks  for  which  compensation 
shall  be  paid.  The  partial  loss  of  an  eye  does  not  appear  in 
the  schedule.  It  deals  with  nothing  less  than  the  loss  of  one 
eye.  It  is  therefore  clear  that  no  support  can  be  found  for 
the  award  in  the  schedule.  Under  the  general  power  confer- 
red by  Sec.  10  upon  the  Board,  an  award  might  be  made  for 
such  an  injury  on  the  theory  of  a  future  incapacity  in  other 
employment,  were  they  not  restricted  in  determining  the 
loss  "to  his  earning  capacity  in  the  employment  in  which  he 
was  working  at  the  time  of  the  accident." 

Section  11. 

Inasmuch  as  claimant  concedes  that  he  can  now  do  his  work 
as  well  as  before  the  injury,  and  that  he  is  receiving  the  same 
wages  therefor,  we  are  unable  to  see  that  the  Board  had  any 
authority  under  the  general  power  granted  by  section  10  to 
award  claimant  any  relief.  The  award  made  by  the  board  was 
a  very  equitable  one,  and  is  one  which  we  would  prefer  to  sus- 


MILLER  vs.  RIVERSIDE  STORAGE  &  CARTAGE  CO.          209 

tn in.  if  we  could  do  so  without  attempting  to  amend  the  law 
by  judicial  construction.  It  appears  to  be,  however,  an  exi- 
gency which  the  law  has  not  provided  for.  We  think  the  relief 
in  such  cases  lies  with  the  Legislature  rather  than  with  the 
courts. 

The  award  must  be  reversed  and  set  aside. 


SUPREME  COURT. 

BLANCHE  MILLER, 

Claimant  and  Appellee, 
vs. 
RIVERSIDE  STORAGE  &  CARTAGE  COMPANY, 

and 

LONDON  &  LANCASHIRE  GUARANTEE  & 
ACCIDENT  COMPANY, 

Contestants  and  Appellants. 

1.  WORKMEN'S    COMPENSATION    ACT — DEPENDENCY — QUESTION   OF   FACT. 
Whether  a  person  not  conclusively  presumed  to  be  wholly  dependent 

upon  the  deceased  servant  for  support,  but  falling  within  the  class 
which  may  be  partially  dependent,  under  the  Workmen's  Com- 
pensation Act,  is  dependent,  is  a  question  of  fact  to  be  determined 
as  of  the  date  of  the  accident  to  the  employe. 

2.  WORKMEN'S  COMPENSATION  ACT — DEPENDENCY — EVIDENCE  OF. 

In  a  proceeding  under  the  Workmen's  Compensation  Act  for  re- 
covery for  the  death  of  a  servant,  evidence  held  to  warrant  a 
finding  that  claimant,  a  sister  of  deceased,  was  partially  dependent 
on  him  for  support. 

Certiorari  to  Industrial  Accident  Board. 
Claim  by  Blanche  Miller  against  the  Riverside  Storage  £ 
27 


210  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Cartage  Company  and  the  London  &  Lancashire  Guarantee  & 
Accident  Corporation  for  compensation  for  the  death  of  a  ser- 
vant. An  award  by  the  committee  of  arbitration  being  ap- 
proved by  the  Industrial  Accident  Board,  contestants  bring 
certiorari.  Affirmed. 

Clark,  Lockwood,  Bryant  &  Klien,  of  Detroit,  for  claimant. 
Florian,  Moore  &  Wilson,  of  Detroit,  for  defendants. 

OSTRANDER,  J.  Thomas  Mille'r  was  employed  by  the 
Riverside  Storage  &  Cartage  Company,  at  a  wage  of  $15.50  per 
week.  He  died  from  an  injury  found  to  have  been  sustained 
by  him  in  the  course  of  and  growing  out  of  his  employment, 
the  injury  being  received  September  2,  1914.  Claimant  is  his 
sister.  Whether  she  was  dependent  upon  him,  within  the 
meaning  of  the  statute,  is  the  question  presented,  it  being 
claimed  there  was  no  evidence  of  dependency.  The  award  of 
the  committee  of  arbitration  was  approved  by  the  Industrial 
Accident  Board.  The  award  was: 

"That  the  said  applicant,  Blanche  Miller,  is  entitled  to  receive  and 
recover  from  said  respondents,  Riverside  Storage  &  Cartage  Company, 
and  London  &  Lancashire  Guarantee  &  Accident  Company  the  sum 
of  Three  (3)  dollars  per  week  for  a  period  of  three  hundred  (300) 
weeks,  from  the  2nd  day  of  September,  1914,  and  that  said  applicant 
is  entitled  to  receive  and  recover  from  said  respondents  on  this  date 
thirty-three  dollars,  being  the  amount  of  such  compensation  that  has 
already  become  due  under  the  provisions  of  law,  the  remainder  of 
said  award  to  be  paid  to  said  Blanche  Miller,  applicant,  by  said  re- 
spondent in  weekly  payments,  commencing  one  week  from  the  date  of 
the  award." 

Whether  one  is  or  is  not  dependent  upon  another  for  sup- 
port is,  of  course,  a  fact.  By  the  terms  of  the  act  persons 
standing  in  certain  relations  to  a  deceased  employe  are  con- 
clusively presumed  to  be  wholly  dependent  upon  him  for  sup- 
port. Claimant  is  not  one  of  them,  nor  were  there  any 'such 
dependents  of  the  deceased  employe.  She  is,  however,  a  per- 
son who  may  be  a  dependent.  It  is  provided  that  if  the  em- 
ploye leaves  dependents  only  partly  dependent  upon  his  earn- 


MILLER  vs.  RIVERSIDE  STORAGE  &  CARTAGE  CO.          211 

ings  for  support  at  the  time  of  his  injury,  the  weekly  compen- 
sation to  be  paid  (by  the  employer)  shall  be  equal  to  the  same 
proportion  of  the  weekly  payments  for  the  benefit  of  persons 
wholly  dependent  as  the  amount  contributed  by  the  employe 
to  such  partial  dependent  bears  to  the  annual  earnings  of  the 
deceased  at  the  time  of  his  injury.  Questions  as  to  who  con- 
stitute dependents  and  the  extent  of  their  dependency  are  to 
be  determined  as  of  the  date  of  the  accident  to  the  employe 
and  their  right  to  any  death  benefit  becomes  fixed  as  of  such 
time,  irrespective  of  any  subsequent  change  of  conditions. 

Testimony  for  the  claimant,  who  is  22  years  old,  tended 
to  prove  that  from  the  time  he  was  16  or  17  years  old  her  de- 
ceased brother,  who  was  seven  years  her  senior,  had  contrib- 
uted to  her  support.  Claimant  went  to  Detroit  when  she  was 
eighteen  years  of  age,  and,  with  her  brother's  aid,  educated 
herself  to  be  a  stenographer.  She  was  employed  by  one  con- 
cern some  two  and  one-half  years,  first  at  eight  dollars  a 
week,  then  at  ten  dollars,  and  for  some  time  before  her  brother 
was  injured  at  twelve  dollars  a  week.  She  lost  some  time,  but 
was  paid  her  full  salary.  She  quit  work  in  August,  1914,  go- 
ing on  a  visit  to  her  old  home  in  Colorado,  and  was  in  Colo- 
rado when  her  brother  was  injured.  She  testifies  that  her 
brother,  regularly,  gave  her  six  dollars  a  week  until  she  left 
Detroit.  He  then  gave  her  seventy-five  dollars  for  her  journey. 
From  February  8,  1913,  to  August  17,  1914,  claimant  had  on 
deposit  in  a  savings  bank  seventy  dollars.  She  took  music  les- 
sons "off  and  on,"  while  in  Detroit,  and,  not  being  strong, 
physically,  paid  out  considerable  money — the  last  in  May, 
1914— for  medical  attention.  At  the  hearing  in  December, 
11H4,  she  was  employed  at  ten  dollars  a  week.  She  went  to 
Colorado,  she  says,  for  rest,  being  nervous  and  not  doing  her 
work  well.  The  deceased  brother  received  as  much  as  eight- 
een dollars  a  week,  at  one  time,  at  one  place  where  he  worked 
in  Detroit.  He  received,  occasionally,  tips,  or  extras,  she  says, 
while  employed  by  the  respondent.  Claimant  paid  for  room 
and  breakfast  and  dinner  five  dollars  a  week,  for  lunches 
twenty-five  cents  each,  for  car  fare  seventy-five  cents  a  week. 


212  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

She  purchased  clothing  during  the  period  from  September, 
1913,  to  September,  1914,  $112.25.  She  made  a  visit  to  Penn- 
sylvania during  the  time  she  lived  in  Detroit.  She  did  no 
work  while  upon  her  last  visit  to  Colorado,  and  paid  nothing 
for  board  or  room.  She  received  nothing  during  that  period 
from  her  brother.  The  arrangement  they  had  made  was  that 
he  was  to  go  to  Colorado  and  return  to  Detroit  with  her. 

Upon  cross-examination,  she  computed  her  expenses  for  the 
year  ending  in  September,  1914,  including  room,  food,  cloth- 
ing and  street  car  fare,  at  $489.25.  And  counsel  say  that,  be- 
ing in  a  position  to  earn,  and  earning,  when  at  work,  a  sum 
equal  to  $520,  or  more,  annually,  she  was  not,  upon  her  own 
computation  and  statement,  dependent  upon  any  one — she  was 
independent. 

It  is  probable  that  in  every  case  where  a  brother  or  sister 
of  a  deceased  employe  claims  relief  under  the  statute,  the 
evidence  of  dependency  will  necessarily  be  evidence  of  con- 
tributions made  by  the  deceased,  because  in  such  cases  the 
support  furnished  by  either  to  the  other,  or  the  service  ren- 
dered by  either  to  the  other,  will  be  voluntary.  But  voluntary 
contributions  of  money,  support,  or  service,  by  a  brother  to 
a  sister,  or  by  a  sister  to  a  brother,  are  not,  necessarily,  evi- 
dence of  the  dependency  of  either,  or  of  the  extent  of  depend- 
ency, within  the  purview  of  the  statute.  The  Legislature  has 
not  denned  "dependent";  it  is  probable  that  no  standard  for 
the  determination  of  dependency  in  fact  can  be  formulated. 
In  a  case  in  which  a  father  sought  compensation  on-  account 
of  the  death  of  a  son  who  had  contributed  to  his  father  a  cer- 
tain average  sum  weekly,  it  was  said  the  question  is  whether 
the  father: 

"Made  a  loss  by  the  death  of  his  son,  in  consequence  of  there  no 
longer  being  a  source  of  assistance  to  him  from  his  son's  earnings,  in 
the  work  at  which  he  was  killed,  and  on  which  source,  from  his  own 
inability  to  earn  wages  himself,  he  was  wholly  or  partially  dependent." 
Arrol  <C-  Co.,  Ltd.  v.  Kelly,  7  F.  906,  42  S.  C.  L.  695. 

In  Simmons  v.  White  Bros.,  80  L.  T.  344,  1  W.  C.  C.,  89,  and 


MILLER  vs.  RIVERSIDE  STORAGE  &  CARTAGE  CO.          213 

in  The  Main  Colliery  Co.,  Ltd.  v.  Dairies,  2  W.  C.  C.  108,  one 
or  more  of  the  judges  were  of  opinion  that: 

"Dependent  probably  means  dependent  for  the  ordinary  necessaries 
of  life  for  a  person  of  that  class  and  position  in  life." 

So  in  Howells  v.  Vivian  'and  Sons,  85  L.  T.  529,  4  W.  C.  C. 
106,  it  was  said: 

"The  test  of  dependency  is  not  whether  the  family  could  support 
life  without  the  contributions  of  the  deceased,  but  whether  they  de- 
pended upon  them  as  part  of  that  income  or  means  of  living." 

These  expressions,  called  out  by  the  facts  of  particular 
cases,  do  not  supply  a  rule.  As  cases  arise,  in  some  of  which 
the  facts  are  held  not  to  prove,  and  in  others  to  be  consistent 
with,  dependency,  debatable  ground  will  be  narrowed.  Un- 
less a  standard  of  independence  for  unmarried  women  who 
work  for  and  live  upon  wages  can  be  set  up  which  classes  as 
independent  all  who  earn  ten  or  even  twelve  dollars  a  week, 
or  more,  it  cannot  be  said  there  was  no  testimony  tending  to 
prove  the  dependency  of  claimant.  It  is  manifest  there  are 
many  women  who  regard  themselves  as  independent,  who  live 
wholly  upon  their  wages,  who  receive  a  smaller  weekly  wage. 
According  to  the  report  of  the  commissioner  of  labor,  pub- 
lished in  1915,  there  were  employed  in  Detroit  1,974  female 
stenographers  who  receive  wages,  the  average  daily  wage  be- 
ing $2.22.  In  two  cities  only,  out  of  sixty  in  the  State,  re- 
ported, is  there  paid  a  higher  average  daily  wage.  Assuming 
six  days  a  week's  work,  the  average  wage  per  week  was  $13.32. 
This  is  more  than  claimant  ever  received,  and  more  than 
three  dollars  per  week  more  than  she  was  earning  when  her 
deposition  in  this  case  was  taken.  That  she  can  maintain 
herself  upon  the  wages  she  is  getting  is  probably  true,  at 
least  with  good,  or  fair  health.  She  says  she  has  not  good 
health,  and  an  agent  of  her  former  employer  testified  that 
she  is  nervous  and  excitable. 

Upon  all  of  the  testimony,  the  arbitration  committee  and 
the  Industrial  Accident  Board  held  that  she  was  partly  depend- 


214  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ent  upon  her  deceased  brother.  I  do  not  think  it  clear  that 
the  finding  is  Wholly  unsupported  by  testimony.  It  follows 
that  it  should  be  and  is  affirmed. 


SUPREME  COURT. 

CLARENCE  L.  CLINE, 

Applicant  and  Appellee, 
vs. 
THE  STUDEBAKER  CORPORATION 

and 
ROYAL  INDEMNITY  COMPANY, 

Respondents  and  Appellants. 

1.  INJURY  IN  COURSE  OF  EMPLOYMENT. 

In  a  proceeding  before  the  Industrial  Accident  Board  for  compensa- 
tion under  the  Workmen's  Compensation  Act,  evidence  held  suffi- 
cient to  warrant  the  board  in  finding  that  the  gonorrheal  infec- 
tion which  partially  destroyed  the  sight  of  the  injured  eye  re- 
sulted from  an  accident  in  the  course  of  employment. 

2.  COMPENSATION  FOR  PARTIAL  Loss  OF  EYE. 

Where  a  servant  suffered  only  partial  loss  of  his  eye,  which  did  not 
impair  his  ability  to  work,  and  resulted  in  no  reduction  of  wages, 
he  was  not  entitled  to  compensation  for  "loss  of  an  eye"  under 
the  Workmen's  Compensation  Act,  §10,  but  only  for  the  partial 
loss,  as  measured  by  lessened  earnings. 

3.  TOTAL  "Loss  OF  EYE." 

Where,  after  an  injury  to  a  servant's  eye,  he  had  10  per  cent  of 
normal  vision  without  glasses,  and  50  per  cent  with  them,  it  could 
not  be  said  that  the  injury  resulted  in  total  loss  of  the  eye,  since 
he  could  not  rest  on  the  90  per  cent  diminution  of  sight;  it  being 
his  duty  to  minimize  the  injury  by  the  use  of  such  a  common 
appliance  as  glasses. 


CLINE  vs.  THE  STUDEBAKER  CORPORATION.  215 

Certiorari  to  Industrial  Accident  Board. 

Proceedings  under  the  Workmen's  Compensation  Act  by 
Clarence  L.  Cline  to  obtain  compensation  for  personal  in- 
juries, opposed  by  the  Studebaker  Corporation,  the  employer, 
and  the  Koyal  Indemnity  Company,  the  insurer.  Keversed 
and  set  aside. 

William  D.  Ellsworth,  of  Detroit,  for  claimant. 
Frederick  J.  Ward,  of  Detroit,  for  defendants. 

PERSON,  J.  It  is  claimed  in  this  case  that  the  appellee 
was  injured  while  working  for  the  defendant  manufacturing 
company,  and  that  the  result  of  such  injury  w^as  the  loss  of 
his  right  eye.  The  insurance  company  carrying  the  risk,  and 
the  injured  employee,  entered  into  an  agreement,  about  a 
month  later,  regarding  compensation,  of  which  the  material 
part  reads  as  follows : 

"On  the  2nd  day  of  March,  1913,  about  five  o'clock  in  the  morning 
the  injured  was  working  on  a  rear  axle  with  another  employee — a 
piece  of  steel  flew  and  struck  injured  in  the  eye.  A  gonorrheal  infec- 
tion set  in  and  the  injured  was  obliged  to  quit  work  on  the  morning  of 
March  4th,  1913. 

"The  terms  of  the  agreement  follow:  It  is  mutually  agreed  by  and 
between  the  parties  hereto  that  the  average  weekly  wage  of  the  in- 
jured at  the  time  of  the  accident  was  $15  per  week  and  that  the  in- 
jured is  to  receive  as  compensation  herein  the  sum  of  $7.50  per  week 
as  provided  for  by  the  Michigan  Compensation  Act." 

This  agreement  was  approved  by  the  Industrial  Accident 
Board,  whereupon  the  insurance  company  paid  to  the  appellee 
866.25,  and  received  his  receipt  as  for  a  full  settlement  of  com- 
pensation, subject,  however,  to  the  approval  of  the  Board. 
Subsequently,  and  on  the  25th  day  of  October,  1913,  the  ap- 
pellee applied  for  further  compensation,  and  a  committee  of 
arbitration  was  appointed,  which  decided  that  he  was  en- 
titled to  the  sum  of  $7.50  per  week  for  100  weeks  from  date 
of  the  accident.  The  committee  also  found  that  there  was  due 
to  the  appellee,  at  the  time  of  their  report,  the  sum  of  $321.50 
less  the  $66  already  paid.  Upon  appeal  to  the  Industrial  Ac- 


216  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

cident  Board  this  decision  of  the  committee  of  arbitration 
was  affirmed,  the  Board  returning  the  following  findings  of 
fact: 

"The  infection  which  destroyed  the  sight  of  the  eye  is  not  reason- 
ably accounted  for  except  as  coming  through  or  resulting  from  the 
accident,  the  applicant  himself  being  free  from  the  disease.  The  in- 
fection may  have  come  from  the  hands  of  Mr.  Rood,  when  he  tried 
to  roll  the  eyelid  back  with  a  match,  or  from  the  hands  of  the  night- 
watchman  when  he  took  a  piece  of  steel  from  the  eye.  The  eye  was 
normal  before  the  injury  and  the  inflammation  which  directly  fol- 
lowed the  injury  caused  the  damage  to  the  eye." 

The  objections  to  the  award,  argued  in  this  court,  will  be 
considered  in  their  order. 

1.  That  the  loss  of  sight  should  not  be  attributed  to  the 
accident,  but  to  a  disease  not  in  any  way  connected  with  the 
employment. 

The  fact  that  a  piece  of  steel  flew  into  the  claimant's  eye  in 
the  course  of  his  employment  seems  fairly  well  established. 
His  testimony  is  to  that  effect  and  it  is  corroborated  by  his 
fellow  workmen.  But  it  is  not  shown  that  this  flake  of  steel 
directly  caused  the  subsequent  impairment  of  vision;  that, 
on  the  contrary,  must  be  attributed  to  the  gonorrheal  infec- 
tion. Such  is  the  finding  of  the  Board,  and  the  finding  is  in 
accordance  with  the  agreement  between  the  parties.  Nor  is  it 
probable,  from  the  testimony  of  the  doctors,  that  the  germ 
which  caused  the  infection  was  upon  the  steel  itself;  they 
state,  however,  that  such  a  germ  might  get  into  the  eye  from  a 
towel,  from  washing  utensils,  from  the  straps  or  rails  of  a 
street  car,  and  in  similar  ways. 

The  burden  is  therefore,  as  insisted  by  counsel  for  defend- 
ants, upon  the  claimant  to  show  by  a  preponderance  of  evid- 
ence that  the  infection  arose  out  of  and  in  the  course  of  his 
employment,  instead  of  at  some  other  time  and  in  some  other 
way.  In  short,  under  the  circumstances  it  was  for  claimant 
to  show  that  the  infection  was  connected  with  the  accidental 
entry  of  the  steel  into  his  eye.  And  in  this  behalf  counsel 
cite  McCoy  v.  Michigan  Screw  Company,  ISO  Mich.  454,  where 


CLINE  vs.  THE  STUDEBAKER  CORPORATION.  217 

the  relation  between  the  infection  and  the  employment,  was 
held  not  to  have  been  established.  In  instances  like  the  pres- 
ent, however,  where  the  claimant  himself  is  personally  free 
from  the  disease,  it  is  hardly  possible  that  the  source  of  in- 
fection can  be  shown  absolutely  by  direct  evidence.  Nor  is 
that  necessary.  "By  a  preponderance  of  evidence  is  meant 
such  evidence  as,  when  weighed  with  that  opposed  to  it,  has 
more  convincing  force,  and  from  which  it  results  that  the 
greater  probability  is  in  favor  of  the  party  upon  whom  the 
burden  rests."  Hoffman  v.  Loud,  111  Mich.  156. 

As  has  been  said,  the  claimant  was  himself  personally  free 
from  the  disease  up  to  the  time  of  the  accident.  Such  was  the 
testimony  of  the  doctor  who  attended  him,  and  the  Industrial 
Accident  Board  has  found  it  to  be  a  fact.  Nor  does  counsel 
for  defendants  dispute  the  -correctness  of  the  finding.  The 
gonorrheal  germ  must  have  come  from  some  outside  source. 
It  must  also  have  been  received  not  later  than  the  time  of  the 
accident  to  have  developed  into  the  condition  found  by  the 
doctor  two  days  afterwards,  according  to  his  testimony.  These 
conditions,  in  connection  with  the  fact,  as  shown,  that  an  in- 
jured eye  is  more  susceptible  to  the  infection  than  a  normal 
eye,  and  with  the  further  fact,  that  at  once,  after  the  accident, 
n  fellow  workman  examined  the  eye,  using  for  the  purpose  a 
match  wrapped  in  a  piece  of  cloth  create  a  considerable  de- 
gree of  probability  that  the  germ  got  into  the  eye  in  the  at- 
tempt to  remove  the  steel.  And  this  probability  was  sufficient 
to  warrant  the  Board  in  their  finding  that  "the  infection, 
which  destroyed  the  sight  of  the  eye,  is  not  reasonably  ac- 
counted for  except  as  coming  through  or  resulting  from  the 
accident/'  Sullivan  vs.  Modern  Brotherhood,  167  Mich.  524. 
If  the  germ  was  introduced  in  an  attempt  to  remove  the  flake 
of  steel  from  the  eye,  it  was  a  direct  consequence  of  the  acci- 
dent, and  arose  out  of  and  in  the  course  of  the  employment. 
The  attempt  to  remove  the  particle  of  steel  wras  a  natural  and 
necessary  result  of  its  entry  into  the  eye.  In  fact,  the  proofs 
in  this  case  seem  to  fairly  establish  the  element  that  was  lack- 
ing in  the  McCoy  case. 


218  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

2.  That  the  Industrial  Accident  Board  acted  without 
authority  of  law  in  allowing  claimant  $7.50  per  week,  for  the 
period  of  100  weeks,  even  if  the  infection  is  found  to  have 
arisen  out  of  and  in  the  course  of  his  employment. 

The  claimant  was  wholly  incapacitated  during  a  period  of 
about  nine  weeks,  and  for  that  he  was  paid  $66.25  according 
to  his  receipt  hereinbefore  mentioned.  He  then  resumed  his 
work  for  the  same  company,  in  about  the  same  line  of  employ- 
ment, and  at  substantially  the  same  wages  he  was  receiving 
before  the  injury.  He  does  not  testify  to  any  impairment  of 
his  ability  to  work,  nor  to  any  reduction  in  wages,  because  of 
the  loss  of  eye  sight;  and  it  was  determined  by  this  court  in 
Hirschkorn  v.  Fiege  Desk  Company,  (150  N.  W.  Rep.  851), 
that  the  statute  does  not  award  compensation  for  the  partial 
loss  of  an  eye  except  as  measured  by  lessened  earnings.  Al- 
though there  is  no  special  finding  upon  the  point,  it  is  evident 
from  the  amount  allowed,  that  the  Industrial  Accident  Board 
treated  the  injury  as  "the  loss  of  an  eye"  rather  than  as  a 
partial  loss,  and  that  it  made  its  allowance  under  the  schedule 
of  fixed  liabilities  contained  in  Section  10  of  the  Act.  Unless, 
therefore,  the  award  can  be  sustained  on  that  theory,  it  must 
be  held  to  have  been  unwarranted. 

The  eye  was  examined  for  loss  of  sight  by  two  experts,  who 
made  their  tests  separately,  and  in  different  ways.  One 
aimed  to  discover  how  much  the  claimant  could  see  when  using 
proper  glasses,  and  found  that  with  their  assistance  he  had  one 
half  of  his  normal  vision.  The  other  made  his  test  without 
glasses  and  says  that  the  eye,  unaided  by  artificial  means,  has 
lost  90%  of  its  sight.  Neither  attempted  the  others  test,  so 
that  the  testimony  of  each  stands  unquestioned,  and  without 
impeachment  by  anything  in  the  record.  The  net  result  is 
that,  when  using  proper  glasses,  the  claimant  has  50%  of  his 
sight,  while  without  them  he  has  only  10%.  The  evidence  will 
not  permit  of  any  different  conclusion. 

Under  these  circumstances  it  seems  impossible  to  say  that 
the  injury  has  resulted  in  the  loss  of  the  eye.  The  use  of 
glasses  is  a  very  ordinary  occurrence,  both  by  young  and  the 


^LIZZIE  G.  DEEM  vs.  KALAMAZOO  PAPER  CO.  219 

old.  It  is  unnecessary  to  determine  whether  the  loss  of  90% 
of  the  sight  is  substantially  the  loss  of  the  eye,  because  that  is 
not  the  present  case.  Ninety  per  cent  of  the  sight  is  not  lost 
when  it  can  be  diminished  to  50%  by  the  use  of  common  ap- 
pliances. And  it  is  the  duty  of  the  sufferer  to  minimize  the 
injury  as  much  as  he  reasonably  may.  We  cannot  help  but 
feel  it  unfortunate,  however,  that  further  tests  of  the  eye  were 
not  made  so  as  to  exclude  all  possible  chance  of  mistake  in 
so  important  a  matter. 

The  case  of  HirscJikorn  v.  Fiege  Desk  Company,  supra,  must 
must  be  held  as  controlling  in  this  one.  The  statute  seems  not 
to  have  provided  compensation  for  the  partial  loss  of  an  eye 
under  the  circumstances  existing  here.  That  case,  however, 
had  not  been  determined  when  this  matter  was  before  the  In- 
dustrial Accident  Board. 

The  award  must  be  reversed  and  set  aside. 


SUPREME  COURT. 

LIZZIE  G.  DEEM, 

Claimant  and  Appellee, 
vs. 
KALAMAZOO  PAPER  COMPANY, 

Defendant  and  Appellant. 

EVIDENCE — PROXIMATE  CAUSE  OF  DEATH. 

The  evidence  shows  claimant's  decedent— her  husband— fell  in  de- 
fendant's plant  and  was  injured;  that  he  returned  to  work  a  few 
days  later,  but  was  still  suffering  from  his  injuries;  a  short  time 
after  returning  to  work  he  fell  dead  in  the  plant;  medical  testi- 
mony tended  to  show  that  there  was  a  concussion  of  the  brain 
resulting  from  the  original  injury. 


220 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


HELD:     That  the  proof  was  sufficient  to  support  the  award  of  the 
Board  in  favor  of  the  widow  for  300  weeks'  compensation. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  that  board  in  awarding  compensation  to  Lizzie  Deem 
for  the  death  of  her  husband,  while  in  the  employ  of  defend- 
ant, Kalamazoo  Paper  Company.  Affirmed. 

Charles  H.  Farrell,  of  Kalamazoo,  for  claimant. 

Alfred  J.  Mills,  of  Kalamazoo,  for  defendant  and  appellant. 

BIRD,  J.  William  W.  Deem,  husband  of  claimant,  had 
been  employed  by  the  Kalamazoo  Paper  Company  for  nearly 
20  years  prior  to  his  death.  During  that  time  he  had  been  in 
reasonably  good  health,  and  had  lost  very  little  time.  For 
several  years  prior  to  his  death  he  had  acted  in  the  capacity 
of  "beater"  engineer.  On  the  morning  of  June  29,  1914,  he 
was  engaged  in  renewing  the  screen  on  one  of  the  "beater" 
cylinders.  To  accomplish  this  he  stood  on  a  plank  placed 
across  the  top  of  the  "beater"  tub.  The  plank  extended  about 
18  inches  beyond  the  edge  of  the  tub.  During  the  temporary 
absence  of  his  helper  he  slipped  or  made  a  misstep  on  the  wet 
plank  and  fell  to  the  cement  floor,  striking  on  his  head  and 
right  shoulder.  He  was  picked  up  in  an  unconscious  condi- 
tion by  the  superintendent,  but  he  regained  consciousness 
soon  after  and  complained  of  being  dizzy  and  of  a  pain  in  his 
right  shoulder.  His  face  was  red  and  he  tried  to  vomit.  Later 
he  was  assisted  to  a  street  car  which  carried  him  to  his  home. 
The  family  physician  was  called  and  found  him  with  a  badly 
bruised  head  and  shoulder.  These  were  cared  for  by  the  doc- 
tor, and  his  recovery  was  rapid  enough  so  that  on  July  6th 
he  returned  to  his  work  and  continued  to  work  until  his  death. 
On  the  morning  of  July  16th,  he  was  seen  to  fall  through  the 
doorway  leading  from  the  "beater"  room  into  the  engine-room. 
The  engineer  saw  him,  and  went  at  once  to  his  assistance,  but 
found  upon  reaching  him  that  he  was  dead. 

A  claim  for  compensation  was  filed  with  the  Industrial  Ac- 


LIZZIE  G.  DEEM  vs.  KALAMAZOO  PAPER  CO.  221 

cident  Board  by  his  widow,  alleging  that  deceased  came  to 
his  death  as  a  result  of  injures  received  in  a  fall  on  June  29th. 
The  matter  received  the  attention  of  the  board  of  arbitration 
and  she  was  given  the  statutory  allowance  of  $3,000.  An  ap- 
peal to  and  re-argument  before  the  Industrial  Accident  Board 
resulted  in  an  affirmance  of  the  award.  The  claimant  con- 
tended before  the  arbitration  board  that  the  deceased  came  to 
his  death  on  July  16th  as  a  result  of  concussion  of  the  brain 
caused  by  his  fall  on  June  29th.  The  claim  was  contested  on 
the  ground  that  death  was  caused  by  heart  disease  which  had 
no  connection  with  his  injury,  and  further,  that  the  proofs 
left  it  to  conjecture  as  to  the  cause  of  death. 

It  is  obvious  that  the  injury  arose  out  of  and  in  the  course 
of  deceased's  employment  and  if  his  death  was  traceable  to 
this  injury,  the  award  should  be  affirmed.  To  establish  the 
fact  that  it  was  so  traceable,  claimant  offered  the  testimony 
of  Dr.  Henwood,  the  family  physician,  who  testified  in  part 
as  follows: 

"His  death  would  be  possible  as  the  result  of  the  blow  he  received 
on  the  29th  of  June.  From  what  I  know  of  his  condition,  his  physical 
condition  on  that  morning  when  I  examined  him,  I  don't  think  there 
was  anything  else,  as  far  as  I  know,  that  would  probably  cause  that 
at  that  time.  There  was  no  organic  trouble  of  any  kind  to  my  knowl- 
edge. Assuming  there  may  have  been  it  would  be  possible  for  it  to 
have  been  accelerated  by  that  injury,  and  death  may  have  been  hastened 
as  a  result  of  that  injury." 

He  also  testified  that  as  a  result  of  his  examination  and 
treatment  it  was  his  opinion* that  it  was  probable  he  died 
from  the  results  of  the  blow,  and  that  a  period  of  two  weeks 
was  not  an  unusual  time  in  which  a  concussion  of  the  brain 
might  produce  its  results. 

Dr.  Paul  Butler  in  answer  to  the  hypothetical  question  as 
to  the  cause  of  death,  answered  that: 

"Assuming  for  the  purpose  of  this  case,  that  the  facts  are  that  he 
suffered  from  sleeplessness,  loss  of  appetite,  dizzy  spells,  I  would  say 
that  he  was  suffering  from  concussion  of  the  brain  due  to  the  original 
blow  or  injury  of  June  29th,  or  due  to  an  injury  anyway." 


222  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

And  later  this  witness  gave  it  as  his  opinion  that  death  re- 
sulted from  concussion  caused  by  the  injury.  Dr.  Rush  Mc- 
Nair.,  a  witness  for  the  respondent,  admitted  that  from  the 
description  given  by  Dr.  Henwood  he  "would  judge  there  was 
some  concussion." 

As  opposed  to  this  there  was  testimony  which  tended  to 
show  that  the  deceased  had  been  troubled  about  three  years 
prior  to  his  death  with  a  cardiac  disturbance,  and  testimony 
wras  offered  and  received  from  which  an  inference  might  have 
been  drawn  that  the  deceased  came  to  death  from  that  cause. 
The  testimony  of  claimant,  however,  brought  the  question  as 
to  the  cause  of  death  into  the  domain  of  fact,  and  as  the  In- 
dustrial Accident  Board  has  passed  upon  the  question  of  fact, 
and  found  that  her  claim  was  established,  there  is  nothing 
left  for  us  to  do  but  to  affirm  the  award. 


SUPREME  COURT. 

ALMA  FINN, 

Claimant  and  Appellee, 
vs. 

DETROIT,  MT.  CLEMENS  &  MARINE 
CITY  RAILWAY, 

Defendant  and  Appellant. 

HUSBAND   AND  WIFE — LIVING  WITH   AT  TIME   OF   INJURY — WHAT   CON- 
STITUTES. 

A  wife  who  is  living  apart  from  her  husband,  following  a  vocation 
in  another  state,  which  was  her  means  of  livelihood  prior  to 
her  marriage,  cannot  be  said  to  be  wholly  dependent  upon  him  for 
her  support,  within  the  meaning  of  the  Workmen's  Compensa- 


FINN  vs.  DETROIT,  MT.  CLEMENS  &  MARINE  CITY  RY.     223 

tion  Law,  and  on  his  death  entitled  to  maximum  compensation 
from  his  employer. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  the  board  in  allowing  an  award  in  favor  of  Alma 
Finn  against  the  Detroit,  Mt.  Clemens  and  Marine  City  Rail- 
way, as  compensation  for  the  death  of  her  husband,  William 
Edward  Finn,  while  employed  by  defendant.  Reversed. 

El  dredge  &  Kelly,  of  Mt.  Clemens,  for  claimant. 
Corliss,  Leete  d  Moody,  and  Benjamin  8.  Pagel,  of  Detroit, 
for  defendant  and  appellant. 

STEERED  J.  This  proceeding  involves  the  review  of  a  de- 
cision of  the  State  Industrial  Accident  Board  in  affirming 
the  conclusions  of  an  arbitration  committee  awarding  to  com- 
plainant full  compensation  for  the  death  of  her  husband  un- 
der the  provisions  of  Act  No.  10  Pub.  Acts  1912,  extra  session. 

On  May  9,  1914,  William  Finn,  claimant's  husband,  while 
employed  by  respondent  as  an  assistant  engineer  in  its  power 
house  at  New  Baltimore,  Michigan,  sustained  fatal  injuries 
by  a  boiler  explosion,  as  a  result  of  which  he  died  two  days 
later  in  a  hospital  at  Mt.  Clemens,  Michigan.  Claimant  was 
not  living  with  him  at  the  time  of  the  accident  but,  having 
been  summoned  by  an  agent  of  respondent,  was  with  him  in 
the  hospital  for  an  hour  or  two  on  the  evening  prior  to  his 
death. 

These  parties  wrere  married  on  October  31,  1912,  and  there- 
after lived  together  as  husband  and  wife  in  a  home  provided 
by  the  husband  at  New  Baltimore  until  October  5,  1913,  when 
claimant  left  her  husband's  home  and  went  to  Fort  Wayne, 
Indiana,  where  she  was  engaged  in  teaching  school,  having 
been  absent  from  him  about  seven  months.  She  was  there  liv- 
ing and  thus  engaged  when  informed  of  her  husband's  injury. 
After  his  death  she  returned  and  resumed  her  work  as  a 
teacher,  being  yet  so  engaged  at  the  time  of  the  arbitration  in 
this  case. 


224  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

So  far  as  the  record  before  us  discloses,  neither  tlie  Commit- 
tee of  Arbitration  nor  the  Industrial  Accident  Board  made 
any  finding  of  facts  in  this  case,  except  such  as  may  be  indi- 
rectly inferred  from  the  formal  award  to  claimant,  of  $3,000 
payable  in  weekly  installments  of  f  10  each,  made  by  the  Com- 
mittee and  a  short  order  by  the  board  affirming  the  same, 
which  are  set  out  in  the  return  to  the  writ  of  certiorari.  The 
only  testimony  returned  is  that  of  claimant,  certified  as  a 
utrue  transcript  of  so  much  of  the  testimony  taken  in  the  said 
cause  before  the  original  Committee  of  Arbitration  and  pre- 
sented to  us  upon  the  hearing  of  the  cause  before  this  board 
as  is  deemed  material  to  said  cause,  and  as  agreed  upon  by 
the  attorneys  for  the  claimant  and  respondent  respectively/ 

The  material  provisions  of  our  workmen's  compensation  law 
(said  Act  10  part  2  sees.  6  and  7)  are  as  follows: 

"Sec.  6.  The  following  persons  shall  be  conclusively  presumed  to 
be  wholly  dependent  for  support  upon  a  deceased  employe:  (a)  A 
wife  upon  a  husband  with  whom  she  lives  at  the  time  of  his  death; 
(b)  A  husband  upon  a  wife  with  whom  he  lives  at  the  time  of  her 
death;  (c)  A  child  or  children,  etc.,  *  *  *.  In  all  other  cases  ques- 
tions of  dependency,  in  whole  or  in  part,  shall  be  determined  in 
accordance  with  the  fact,  as  the  fact  may  be  at  the  time  of  the  injury; 
and  in  such  other  cases,  if  there  is  more  than  one  person  wholly  de- 
pendent, the  death  benefit  shall  be  divided  equally  among  them,  and 
persons  partly  dependent,  if  any,  shall  receive  no  part  thereof;  if 
there  is  no  one  wholly  dependent  and  more  than  one  person  partly 
dependent,  the  death  benefit  shall  be  divided  among  them  according 
to  the  relative  extent  of  their  dependency.  *  *  * 

"Sec.  7.  Questions  as  to  who  constitute  dependents  and  the  extent 
of  their  dependency  shall  be  determined  as  of  the  date  of  the  acci- 
dent to  the  employe,  and  their  right  to  any  death  benefit  shall  become 
fixed  as  of  such  time,  irrespective  of  any  subsequent  change  in  con- 
ditions; *  *  *." 

To  arrive  at  the  award  made  by  the  committee  and  affirmed 
by  the  board,  they  apparently  found  that  claimant  was  living 
with  her  husband  at  the  time  of  his  death,  and  they -must, 
therefore,  conclusively  presume  that  she  as  his  wife  was  wholly 
dependent  upon  him  for  support  regardless  of  what  the  actual 
facts  were,  and  without  regard  to  the  later  provisions  of  the 


FINN  vs.  DETROIT,  MT.  CLEMENS  &  MARINE  CITY  RY.     225 

act  as  to  questions  of  dependency  in  whole  or  in  part  in  other 
cases,  or  the  requirement  that  the  extent  of  dependency  and 
right  to  death  benefit  shall  be  determined  and  fixed  as  of  the 
date  of  the  accident. 

Whatever  legal  fiction  may  be  invoked  under  a  presumption 
-as  to  claimant's  residence  by  reason  of  coverture,  it  is  undis- 
puted that  during  more  than  half  a  year  preceding  her  hus- 
band's injury  and  death  she  was  living  in  another  state  where 
she  had  resumed  the  manner  of  life  and  vocation  followed  by 
her  before  marrying,  having  of  her  own  volition  left  her  hus- 
band, abandoned  the  home  in  which  they  were  living  together 
.and  withdrawn  from  all  domestic  duties  and  obligations  of  a 
wife  under  such  circumstances  as,  from  her  standpoint,  de- 
manded a  reconciliation  with  her  husband  before  she  would 
again  live  with  him  and  resume  marital  relations. 

It  is  urged  in  her  behalf  that  her  evidence  shows  her  ab- 
sence from  her  husband  was  but  temporary,  with  his  consent 
and  not  a  final  separation;  that  they  were  yet  husband  and 
wife,  in  friendly  communication  with  each  other,  he  contribut- 
ing to  her  support  and,  under  a  cited  line  of  authority  bear- 
ing on  the  temporary  absence  of  husband  and  wife  from  each 
other  for  some  good  reason,  she  was  living  with  him  in  con- 
templation of  law  at  the  time  of  his  injury,  and  in  fact  at  the 
time  of  his  death. 

Her  evidence  as  to  the  nature  and  occasion  of  leaving  her 
liusband  and  living  apart  discloses  something  more  than  a 
mere  suspension  of  the  family  relations,  for  an  understood 
period  of  time,  incidental  to  journeys  for  business  or  pleas- 
ure, changing  the  family  place  of  residence,  delays  in  prepar- 
ing a  new  home,  financial  embarrassment,  sickness  or  like 
common  causes  which  often  result  in -the  members  of  a  family 
•temporarily  living  apart  without  estrangement.  While  claim- 
ant testifies  at  length  as  to  how  she  came  to  leave,  what  she 
thought  and  how  she  felt  about  it,  much  of  her  evidence  con- 
sists of  conclusions  and  generalizations.  She  states  they  were 
of  different  religious  faith,  and  had  different  ideas  of  different 
29 


226  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

things,  that  there  was  no  climax,  that  when  she  went  she  did 
not  regard  it  as  a  final  separation,  and  there  was  no  agree- 
ment to  that  effect.  She  makes  no  claim  that  her  husband 
wanted  her  to  go  or  was  unkind  to  her,  but  that  matters  were 
discussed  and  he  "felt  that  if  I  was  not  happy  and  wanted  to 
go,  why  I  could  go,  but  that  I  should  feel  free  to  send  to  him 
for  money  at  any  time,  and  that  he  was-  always  perfectly  will- 
ing to  give  me  whatever  I  wanted  at  all  times;"  that  they 
made  no  definite  arrangements  for  her  to  come  back  and  live 
with  him,  but  she  "was  perfectly  willing  to  come,  and  willing 
for  a  reconciliation — in  fact  had  looked  forward  to  it  all  the 
time,  and  felt  it  was  bound  to  come."  On  whose  initiative  11 
was  to  come  and  just  what  was  to  be  reconciled  she  does  no1 
state.  Asked  what  were  her  intentions  when  she  went  away 
and  her  feelings  towards  her  husband  she  answered  in  part : 

"My  intentions  were  just — I  really  intended  to  go  home  and  I  felt 
just  going  away  and  staying  a  while  to  see  if  the  separation  would 
not  bring  back  a  reconciliation.  It  was  not  a  final  move  on  my  part. 
*  *  *  I  cared  a  great  deal  about  him — I  had  no  great  ill-feeling,  no 
ill-feeling  towards  him  at  all.  It  was  just  simply  that  there  were  a 
lot  of  little  things  came  up,  different  things  and  different  opinions, 
and  so  forth,  that  made  us  unhappy,  and  under  the  circumstances  I 
thought  that  going  away  would  bring  us  together." 

The  latter  Hibernicism  embodies  the  substance  of  her  re- 
peated explanations  of  why  she  left  and  stayed  away  from  her 
husband.  In  another  portion  of  her  testimony  she  says: 
felt  we  were  drifting  apart  and  the  only  thing  that  would  bring 
us  together  would  be  a  separation.  So  I  went  away."  In  other 
words,  she  felt  that  "they  would  look  better  to  each  other 
when  out  of  sight."  She  further  testifies  that  after  leaving 
her  husband  they  corresponded  and  she  received  letters  from 
him  every  two  or  three  weeks,  all  of  which  she  destroyed  when 
changing  her  boarding  place  in  April,  because  she  did  not  care 
to  take  them  with  her,  that  he  sent  her  money  whenever  she 
requested  it  and  since  she  left  had  sent  her  a  total  of  |78. 

From  the  time  claimant  left  her  husband's  home,  in  Octo- 
ber, 1913,  she  did  not  see  him  again  until  the  night  of  May  10r 


FINN  vs.  DETROIT,  MT.  CLEMENS  &  MARINE  CITY  RY.     227 

1914,  when  she  arrived  at  the  hospital  in  Mt.  Clemens  about 
midnight  and  sat  at  his  bedside  an  "hour  or  two,"  during 
which  time  she  states  that  she  "talked  very  little  to  him,  once 
in  a  while  I  spoke  to  him  and  he  knew  me,  recognized  me, 
spoke  my  name  and  once  sang.  I  asked  him  not  to  sing,  and 
he  tried  to  rise  and  he  said,  'I  always  sang  to  yon,  and  I  think 
I  can  sing  now.' '  After  she  had  been  with  him  the  length  of 
time  stated  she  went  to  another  room  at  the  suggestion  of  one 
of  the  sisters  and  did  not  see  him  again  before  his  death,  which 
occurred  the  next  morning  at  8  or  9  o'clock.  She  testified  that 
when  she  went  in  and  spoke  to  him  he  first  asked  how  she 
could  leave  her  school?  That  when  she  inquired  if  he  missed 
her  and  had  been  lonesome  without  her,  he  said  he  had  been 
"so  lonesome.  *  *  You  won't  leave  me  any  more,  will  you? 
You  will  stay  right  here  with  me  always." 

It  is  urged  that  claimant's  testimony  sustains  the  statutory 
conclusive  presumption  of  dependence  in  whole,  because  she 
is  shown  to  have  been  living  with  her  husband  at  the  time  of 
his  death,  it  being  said  in  her  counsel's  brief:  "If  ever  hus- 
band and  wife  were  living  together,  these  two  w^ere  when  they 
met,  because  reconciled  and  spent  their  last  few  hours  as  hus- 
band and  wife  together." 

While  deceased's  feeling  and  attitude  as  to  a  "reconcila- 
tion"  may  be  inferred  from  his  statement  that  he  had  been 
lonesome  in  her  absence  and  his  request  that  she  "stay  right 
here"  with  him  "always,"  it  does  not  even  appear  she  gave 
him  any  assurance  that  she  acquiesced,  or  that  anything  fur- 
ther passed  between  them  concerning  her  return  beyond  his 
inquiry  as  to  how  she  could  leave  her  school  to  which  she  re- 
sponded she  had  "managed  that  all  right." 

Can  it  be  said  from  her  testimony,  viewed  most  favorable 
to  such  contention,  that  within  the  purpose  and  meaning  of 
the  statute,  she  was  a  wife  living  with  her  husband  at  the  time 
of  his  death?  She  had  just  arrived  from  another  state  where 
she  was  located  and  regularly  employed  as  a  teacher  coming, 
as  she  states,  on  receipt  of  "a  telegram  from  the  claim  agent, 
Mr.  Le  Fevre,  of  the  D.  U.  R.  stating  that  my  husband  was 


228  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

badly  burned   and  for  me   to   come  to   Mt.   Clemens,  to   St. 
Joseph  Sanitarium."     She  was  with  him  in  his  room,  in  the 
hospital  to  which  others  had  taken  him,  for  an  hour  or  two 
after  her  arrival,  and  remained  in  the  same  building  but  not 
with  him  until  his  death  on  the  following  day.    Leaving  out  o 
consideration  the  fact  that  they  had  been  married  and  Aver 
not  divorced,  they  were  no  more  living  in  family  relation,  a 
such  relation  is  commonly  understood,  than  would  have  been 
any  friend  or  relative  who  learned  of  his  injury  and  visited 
him  at  the  hospital  under  like  circumstances  for  the  sam 
length  of  time.    After  she  first  withdrew  from  all  conjugal  re 
lations,  leaving  her  husband  and  their  home  of  her  own  ac 
cord,  they  had  no  matrimonial  abode,  house  or  home  life  to 
gether  during  the  remainder  of  his  life  and,  so  far  as  shown 
no  definite  agreement  that  they  ever  would  have.     Concedin 
the  claimed  reconciliation,  which  was  with  her  a  condition  o 
resuming  the  marital  relations,  they  never  did,  or  could,  re 
establish  a  home  and  actually  dwell  together  in  fact. 

The  purpose  and  scope  of  this  statute  is  compensation  to  de 
pendents  when  death  or  injury  befalls  the  workman, 
touches  no  other  property  rights  arising  out  of  the  domesti 
relations.  Dependency,  in  whole  or  in  part,  is  primarily  an< 
as  a  rule  a  question  of  fact  to  be  determined  as  evidence  maj 
disclose,  with  the  exception  of  an  absolute  presumption  of  de 
pendency  (irrespective  of  the  facts)  in  case  of  husband  anc 
wife  or  minor  children  under  specified  conditions.  No  dis 
tinction  is  made  between  husband  and  wife  in  that  particular 
If  a  wife  living  with  her  husband  is  fatally  injured  in  an  em 
ployment  coming  under  the  act,  the  husband  living  with  he 
at  the  time  of  her  death  is  likewise  conclusively  presumed  t< 
be  wholly  dependent  for  support  upon  her,  irrespective  o 
what  the  real  facts  are.  If  the  parties  in  this  case  were  re 
versed  and  it  was  the  husband  demanding  in  his  favor  con 
elusive  presumption  that  he  was  wholly  dependent  upon  hi, 
wife  because  living  with  her  at  the  time  of  her  death,  lie  wo«l< 
be  equally  entitled  to  it  under  the  statute,  but  that  he  was  liv- 
ing with  her  must  be  established  before  the  presumption  cai 


FINN  vs.  DETROIT,  MT.  CLEMENS  &  MARINE  CITY  RY.     229 

be  invoked.  In  this  case  the  nature  and  character  of  claim- 
ant's absence  from  her  home  and  husband  are  undisputed  and, 
whatever  reason,  preference  or  pretext  she  may  have  had  for 
siicli  course,  it  is  manifest  that  she  intended  to  and  did  sever 
the  personal  marital  relations  for  an  indefinite  period  with 
the  possibility  and  the  expectation,  as  she  represents,  that,  at 
some  indefinite  time  in  the  future,  after  a  reconciliation,  they 
would  be  resumed.  In  the  most  favorable  view,  as  she  states 
the  case,  the  husband  and  wife  were  voluntarily  living  apart 
because  they  were  not  happy  together,  in  different  states,  each 
following  the  pursuits  and  living  the  separate  life  led  before 
marriage,  but  in  friendly  correspondence  with  each  other  and 
a  possibility  that  the  existing  estrangement,  whatever  it  was, 
might  some  time  be  reconciled  and  they  live  together  again. 

The  Massachusetts  Workmen's  Compensation  Act  (St.  1911, 
c.  751,  part  2  sec.  7),  contains  provisions  identical  with  those 
under  consideration  here.  In  construing  the  expression  "with 
whom  she  lives"  the  Supreme  Court  of  that  state,  in  re  Nel- 
son, 105  N.  E.  357,  holds  that  those  words  are  "used  in  anti- 
thesis to  living  apart"  and  mean  "living  together  as  husband 
and  wife  in  the  ordinary  acceptation  and  significance  of  these 
words  in  common  understanding.  They  mean  maintaining  a 
home  and  living  together  in  the  same  household  or  actually 
cohabiting  under  conditions  which  would  be  regarded  as  con- 
stituting a  family  relation.  There  may  be  temporary  absences 
and  incidental  interruptions  arising  out  of  changes  in  the 
house  or  town  of  residence,  or  out  of  travel  for  business  or 
pleasure.  But  there  must  be  a  home  and  a  life  in  it.  *  *  * 
But  it  is  the  situation  arising  from  the  circumstances  of  a 
common  home,  a  place  of  marital  association  and  mutual  com- 
fort, broken  up  or  put  in  peril  of  hardship  or  extinction  by  the 
husband's  death,  which  is  protected  by  the  conclusive  pre- 
sumption of  dependency  established  beyond  the  peradventure 
of  dispute  by  the  statute."  No  such  state  of  facts  is  disclosed 
here. 

In  those  cases  where  absence  of  the  husband,  by  reason  of 
employment  or  other  common  causes  regarded  as  temporary, 


230 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


from  an  established  home  in  which  he  resided  with  his  wife  01 
family  has  been  held  not  to  negative  the  statutory  presum] 
tion,  it  is  nevertheless  recognized  that  the  family  relations  ii 
intent  and  fact  must  otherwise  exist  unbroken.  Even  in  th( 
extreme  case  of  Northwestern  Iron  Co.  vs.  Industrial  Acci- 
dent Board,  154  Wis.  97,  cited  and  relied  upon  in  claimant's 
brief — with  which  the  Nelson  case  does  not  harmonize  in  al] 
particulars — the  rule  is  guarded  and  it  is  made  plain  that 
wife  may  not  be  construed  as  living  with  an  absent  husban< 
where  there  is  an  actual  separation  in  the  nature  of  ai 
estrangement  at  the  time  of  his  injury  and  there  exists  at  thai 
time  an  actual  severance  or  break  in  the  marital  relations.  Ii 
this  case  it  is  the  wife  wrho  had  voluntarily  absented  herself 
from  her  home  and  husband  under  just  the  conditions  Ias1 
above  recited  and,  therefore,  the  conclusive  presumption  oi 
total  dependence  does  not  obtain. 

The  foregoing  conclusions  do  not  deprive  claimant  of  th< 
right  to  show  actual  dependence,  total  or  in  part,  as  a  mat- 
ter of  fact.  While  there  is  in  this  record  no  proof  nor  conclu- 
sive presumption  shown  to  sustain  an  award  on  the  theory 
that  she  was  wholly  dependent  for  support  upon  deceased, 
either  at  the  time  of  his  injury  or  of  his  death,  the  board  can 
and  should  review  whatever  evidence  is  produced,  ascertain 
from  it,  and  determine  as  the  facts  appear,  the  extent  of  her 
dependence  upon  deceased  for  support  at  the  time  of  his  in- 
jury, as  in  such  cases  provided. 

The  decision  of  said  Industrial  Accident  Board  is  therefore 
reversed  and  the  case  hereby  remanded  for  such  further  hear- 
ing therein  before  said  board  as  parties  may  desire. 


GERTRUDE    L.   BLYNN   vs.   CITY   OF   PONTIAC.  231 


SUPREME  COURT. 

GERTRUDE  L.  BLYNN, 

Claimant  and  Appellee, 
vs. 
CITY  OF  PONTIAC, 

Respondent  and  Appellant. 

MUNICIPAL  CORPORATIONS — MASTER  AND  SERVANT — POLICEMAN — DISTINC- 
TION BETWEEN  SERVANT  AND  PUBLIC  OFFICER — PONTIAC  CHARTER. 
Under  the  charter  of  the  city  of  Pontiac,  which  provides  for  the 
appointment  of  policemen  by  the  city  commission  and  that  the 
police  department  should  consist  "of  a  chief  of  police  and  as 
many  subordinate  officers,  policemen,  and  employees  as  the  com- 
mission shall  by  ordinance  determine,"  and  also  providing  that 
the  commission  shall  make  the  necessary  rules  to  regulate  the 
police  department  and  the  duties  "of  officers  and  employees  of 
such  department,"  policemen  who  took  oath  of  office  under  the 
charter  were  not  employees  of  the  corporation,  but  were  public 
officers  not  entitled  to  compensation  under  the  workmen's  com- 
pensation law.  Act  No.  10,  Extra  Session  1912  (2  How.  Stat. 
[2d  Ed.]  §3945). 


Certiorari  to  the  Industrial  Accident  Board.  Submitted 
January  12,  1915.  Decided  March  18,  1915. 

Gertrude  L.  Blynn  presented  her  petition  against  the  city 
of  Pontiac  for  compensation  for  the  death  of  her  husband. 
From  an  order  awarding  compensation,  defendant  brings  cer- 
tiorari.  Reversed. 

Aaron  Perry,  for  appellant. 
A.  L.  Moore,  for  appellee. 

This  is  an  appeal  from  a  decision  of  the  Industrial  Accident 
Board,  affirming  an  award  made  to  the  applicant  by  an  arbi- 
tration committee  on  account  of  the  death  of  Millard  F. 
Blynn,  her  husband,  who  was  killed  on  the  2d  of  January, 
11)12,  while  riding  in  an  automobile  with  two  other  policemen; 


232  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

the  automobile   colliding  with   a  telegraph  pole.     The  facts 
stipulated  by  counsel  are  as  follows: 

(1).  By  virtue  of  the  provisions  of  the  Constitution  of  the  State 
of  Michigan,  and  Act  No.  279,  Pub.  Acts  1909,  the  city  of  Pontiac, 
Mich.,  adopted  in  1911  a  charter  providing  for  a  commission  form  of 
government,  and  has  been  operating  under  such  charter  since  that 
time. 

(2).  Section  1  of  chapter  5  of  said  charter,  among  other  things, 
provides  that  "all  powers  conferred  on  the  city  shall,  unless  otherwise 
provided  in  this  charter,  be  exercised  by  a  mayor  and  two  commis- 
sioners, who  together  shall  be  known  and  designated  as  the  "Com- 
mission." 

(3).  Section  1  of  chapter  6  of  said  charter  provides  that  "the 
executive  and  administrative  powers  and  authority  of  the  city  not 
herein  otherwise  provided  for  shall  be  distributed  among  six  depart- 
ments as  follows: 

(1)  Department  of  public  safety. 

(2)  Department  of  finance. 

(3)  Department  of  water  supply. 

(4)  Department  of  public  utilities. 

(5)  Department  of  streets  and  public  improvements. 

(6)  Department  of  sewers  and  drainage. 

(4).  Section  2  of  said  chapter  provides  that  "the  mayor  shall  be 
the  commissioner  of  the  departments  of  finance  and  public  safety." 

(5.)  Section  1  of  chapter  7  provides  that  "the  commission  shall 
determine  and  assign  the  duties  of  the  several  departments,  except  as 
in  this  charter  otherwise  provided." 

(6).  Section  5  of  said  chapter  reads  as  follows:  "All  appointive 
officers  of  the  city  shall  perform  such  duties  as  shall  be  prescribed 
by  ordinance  and  this  charter  and  which  may  be  required  by  the 
commission  and  their  heads  of  departments." 

(7).  Section  2,  chapter  7,  of  the  charter  provides,  among  other 
things:  "The  mayor  shall  also  have  special  supervision  of,  and  be 
charged  with,  the  proper  administration  of  the  police,  fire,  and  health 
departments." 

(8).  Other  sections  in  the  charter  give  to  the  two  other  commis- 
sioners definite  departments  of  work,  such  as  sewers,  drains,  streets, 
etc.,  under  one  heading  to  one,  and  water  supply  and  public  utilities 
to  another. 

(9).  Section  10,  chapter  7,  provides:  "Each  member  of  the  com- 
mission shall  have  authority  to  employ  such  employes  as  may  be 
necessary  to  conduct  their  several  departments  in  an  efficient  man- 
ner, and  such  employes  may  be  discharged  at  the  pleasure  of  the  mem- 
ber making  such  appointment." 


GERTRUDE    L.    BLYNN   vs.    CITY   OF   PONTIAC.  233 

(10).  Section  8,  chapter  7,  provides:  "The  mayor  may,  and  shall, 
at  the  request  of  the  commission,  appoint  a  city  attorney,  chief  of  fire 
department,  chief  of  police,  and  health  officer,  subject  to  the  confirma- 
tion of  the  commission.  All  of  such  appointees  shall  be  removable  at 
the  pleasure  of  the  commission." 

(11).  Section  14  of  said  chapter  provides:  "that  the  commission 
shall  by  ordinance  define  the  powers  and  duties  of  all  city  officers, 
whether  elected  or  appointed,  where  the  same  have  not  been  defined 
by  this  charter.  Additional  duties  may  be  imposed  on  such  officers 
whose  duties  are  partially  defined  hereunder." 

(12).  Section  24  of  said  chapter  reads  as  follows:  "Every  ap- 
pointive officer  shall,  before  he  enters  upon  the  duties  of  his  office, 
subscribe  and  file  with  the  city  clerk  an  oath  to  suppoprt  the  Consti- 
tution of  the  United  States  and  the  Constitution  of  the  State  of  Michi- 
gan, and  to  faithfully  perform  the  duties  of  the  office  to  the  best  of  his 
ability." 

(13).  Section  15  of  chapter  8  of  said  charter  reads  as  follows: 
"Prosecutions  for  violation  of  the  ordinances  of  the  city  may  be  com- 
menced by  warrant,  and  all  process  in  such  cases  shall  be  in-  the  name 
of  'The  People  of  the  State  of  Michigan.'  The  practice  in  such  cases 
shall  be  the  same,  as  near  as  may  be,  as  in  criminal  cases  cognizant 
by  Justices  of  the  Peace  under  the  general  laws  of  the  State." 

(14).  Section  16  of  said  chapter  reads  as  follows:  "All  process 
issued  in  any  prosecution  or  proceeding  for  the  violation  of  any  or- 
dinance shall  be  directed  to  the  Chief  of  Police  or  to  any  police  officer 
of  the  city  or  county  of  Oakland,  and  may  be  executed  in  any  part  of 
the  State  by  said  officer  or  any  other  officer  authorized  by  law  to 
serve  process  issued  by  a  justice  of  the  peace." 

(15).  Sections  4,  5  and  6  of  chapter  10  of  said  charter  read  as 
follows : 

"Sec.  4.  The  commission  shall  by  ordinance  establish  and  provide 
for  the  maintenance  of  a  police  department  and  a  fire  department. 

"Sec.  5.  The  police  department  shall  consist  of  the  chief  of  police 
and  as  many  subordinate  officers,  policemen,  and  employes  as  the 
council  shall  by  ordinance  determine. 

"Sec.  6.  The  commission  shall  by  ordinance  make  and  establish 
rules  for  the  regulation  and  government  of  the  police  department, 
prescribe  and  define  the  powers  and  duties  of  the  officers  and  employees 
of  such  department,  and  shall  prescribe  and  enforce  such  police  regu- 
lations as  will  most  effectually  preserve  the  peace  and  good  order  of 
the  city,  preserve  the  inhabitants  from  personal  violence,  and  pro- 
tect public  and  private  property  from  destruction  by  fire  and  unlaw- 
ful depredation." 

(16).  Since  the  adoption  of  this  form  of  government  by  the  City 
of  Pontiac,  it  has  been  the  practice  of  the  mayor  to  appoint  police- 


234  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

men,  and  such  as  have  been  discharged  have  been  discharged  by  the 
mayor  without  any  action  on  the  part  of  the  commission  as  a  whole 
in  any  way  whatsoever.  Policemen  are  not  appointed  for  any  definite 
term;  no  vote  of  the  commission  has  been  required  to  approve  their 
appointment. 

(17).  No  printed  rules  or  regulations  were  ever  adopted  by  the 
police  department,  and  none  were  in  force  at  the  time  of  the  appoint- 
ment and  death  of  Millard  Blynn.  No  printed  rules  had  been  issued 
prescribing  the  beat  limits  or  the  portions  of  the  city  that  the  various 
policemen  were  required  to  control.  Policemen  were  not  required  to 
make  written  reports  of  their  doings  or  their  whereabouts  at  any 
time  other  than  to  make  returns  of  service  of  process  when  served 
by  them.  They  were  required  to  call  up  the  central  office  at  stated 
intervals  by  'phone  and  report  their  whereabouts  and  what,  if  any- 
thing, unusual  had  occurred. 

(18).  April  29,  1911,  the  commission  of  said  city  made  and  passed 
an  ordinance  entitled,  "An  ordinance  fixing  and  determining  the  com- 
pensation of  the  appointive  officers  of  the  City  of  Pontiac,  prescribing 
their  duties  where  not  prescribed  by  charter,  and  repealing  all  or- 
dinances and  parts  of  ordinances  conflicting  herewith."  That  ordi- 
nance took  effect  at  the  expiration  of  30  days  from  its  passage,  and 
sections  1,  2,  3  and  4  thereof  read  as  follows: 

"Sec.  1.  The  appointive  officers  of  the  City  of  Pontiac  hereinafter 
named  shall  be  entitled  to  and  shall  receive  from  the  said  City  of 
Pontiac,  in  full  payment  for  all  services  to  be  performed  by  such  offi- 
cers and  employees,  except  as  herein  otherwise  provided,  the  several 
amounts  hereinafter  designated  and  named. 

"Sec.  2.  The  chief  of  police  shall  be  entitled  to  and  shall  receive 
the  sums  of  one  thousand  dollars  per  annum,  payable  in  semi-monthly 
installments. 

"Sec.  3.  The  police  force  of  the  City  of  Pontiac  shall  consist  of  a 
chief  of  police  and  seven  regular  policemen  to  be  appointed  by  the 
mayor  by  and  with  the  consent  of  the  commissioners  of  said  City, 
and  such  other  special  police  to  be  appointed  by  the  mayor  from  time 
to  time  as  in  his  judgment  emergency  or  necessity  may  require. 

"Sec.  4.  The  regular  police  of  the  force  shall  be  entitled  to  and 
shall  receive  the  sum  of  nine  hundred  dollars  per  annum,  payable  in 
semi-monthly  installments.  Special  police  shall  be  entitled  to  and 
shall  receive  the  sum  of  two  and  one-half  dollars  per  day.  In  addition 
to  the  regular  compensation  of  police  officers,  regular  members  of  the 
force  shall  be  entitled  to  and  shall  receive  such  fees  for  the  services  of 
process  as  is  permitted  by  statute." 

(19).  That  ordinance  contains  other  sections  with  reference  to 
the  duties  and  salaries  of  the  city  clerk  and  other  appointed  officers, 


GERTRUDE   L.   BLYNN  vs.   CITY   OP  PONTIAC.  235 

but  no  further  provisions  having  any  reference  to  police  officers  or  the 
police  force  of  said  city. 

(20).  On  the  llth  day  of  March,  1912,  said  commission  amended 
section  4  of  said  ordinance  (such  amendment  to  take  effect  on  the  first 
Monday  of  May,  1912)  so  as  to  read  as  follows: 

"Sec.  4.  The  regular  police  of  the  force  shall  be  entitled  to  and 
shall  receive  the  following  compensation,  to  wit:  New  men,  at  the 
rate  of  nine  hundred  dollars  per  annum  for  the  first  year;  nine 
hundred  and  fifty  dollars  per  annum  for  the  second  year;  and  the  sum 
of  one  thousand  dollars  per  annum  for  the  third  year  and  subsequent 
years.  Men  who  have  served  on  the  police  force  of  said  city  one 
year  shall  receive  the  sum  of  nine  hundred  and  fifty  dollars  per 
annum  for  the  first  year's  service  under  this  ordinance,  and  one  thou- 
sand dollars  per  annum  for  the  second  year  and  subsequent  years, 
and  men  who  have  served  on  the  police  force  of  said  city  for  two 
years  shall  receive  the  sum  of  one  thousand  dollars  per  annum  for 
the  first  year  under  this  ordinance  and  the  sum  of  one  thousand  dol- 
lars per  annum  thereafter,  all  of  said  sums  payable  in  semi-monthly 
installments;  special  police  shall  be  entitled  to  and  shall  receive  the 
sum  of  two  and  50-100  dollars  per  day.  In  addition  to  the  regular  com- 
pensation the  police  officers  and  regular  members  of  the  force  shall 
be  entitled  to  and  shall  receive  from  other  sources  such  fees  for  the 
service  of  process  as  is  permitted  by  statute  for  sheriffs  and  constables." 

(21).  The  appointment  of  the  chief  of  police  has  from  year  to 
year  been  submitted  to  the  commission  for  their  approval,  but  the 
appointment  of  the  police,  regular  or  special,  has  never  been  sub- 
mitted to  the  commission  for  approval,  nor  has  their  dismissal  from 
service  been  submitted  to  the  commission.  They  have  been  hired  or 
discharged  by  the  mayor  at  will. 

(22).  Section  21,  chapter  7,  of  the  charter,  in  the  enumeration  of 
the  municipal  powers  of  the  commission,  and  their  right  to  enact 
ordinances,  contains  this  language:  "May  enact  all  laws  and  ordinances 
relating  to  its  municipal  concerns,  and  shall  have  and  exercise  all 
governmental  and  police  powers,  subject  to  the  limitations  prescribed 
by  this  charter,  the  Constitution  and  laws  of  the  State  and  of  the 
United  States." 

(23).  The  deceased,  Millard  F.  Blynn,  was  appointed  a  policeman 
of  the  City  of  Pontiac,  January  2,  1912,  by  Robert  J.  Lounsbury,  then 
mayor  of  said  city,  by  a  written  appointment,  of  which  the  following 
is  a  copy,  to  wit: 


236  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"Pontiac  City  Commission. 
"R.  J.   Lounsbury,  Mayor. 
"Dick  Dewey,  Commissioner. 
"Wm.  H.  Osmun,  Commissioner. 

"Pontiac,    Mich.,  Jan.   2-12. 

"I  hereby  appoint  Millard  Blynn  as  policeman  for  the  City  of 
Pontiac. 

"R.  J.  Lounsbury,  Mayor." 
and  on  said  day  executed  and  filed  with  the  city  clerk  of  said  city 
the  following  oath  of  office,  to  wit: 

"STATE  OF  MICHIGAN 

So. 

"COUNTY  OF  OAKLAND 

"I  do  solemnly  swear  that  I  will  support  the  Constitution  of  the 
United  States,  and  the  Constitution  of  this  State,  and  that  I  will  dis- 
charge the  duties  of  the  office  of  policeman  of  the  city  of  Pontiac,  said 
county  and  State,  to  the  best  of  my  ability. 

"Millard  F.  Blynn. 

"Subscribed  and  sworn  to  before  me  this  2d  day  of  January,  A.  D. 
1912. 

"R.  J.  Lounsbury, 
"Notary  Public,  Oakland  County,  Mich. 

"My  commission  expires  Jan.  26,  1913." 

(24).  From  his  said  appointment  to  the  time  of  his  death,  said 
deceased  was  regularly  paid  semi-monthly  his  salary,  at  the  rates 
fixed  by  the  above  specified  ordinance  made  and  passed  April  29,  1911, 
and  the  above  specified  amendment  thereof,  such  several  installments 
being  first  audited  and  allowed  by  the  commission  of  said  city  while 
in  session  as  such  commission  by  resolution  thereof,  and  during  all 
said  term  all  the  members  of  said  commission  knew  that  he  was  act- 
ing as  a  policeman  in  said  city. 

KUHN,  J.     (after  stating  the  facts] 
Section  7,  pt.  I,  Act  No.  10,  Pub.  Acts  1912  (Extra  Session) 
(2  How.  Stat.  [2d  Ed.]  P.  3945),  provides  in  part  as  follows: 

"The  term  'employee'  as  used  in  this  act  shall  be  construed  t( 
mean: 

"(1).  Every  person  in  the  service  of  the  State,  or  of  any  county, 
city,  township,  incorporated  village  or  school  district  therein>  under 
any  appointment,  or  contract  of  hire,  express  or  implied,  oral  or  writ- 
ten, except  any  official  of  the  State,  or  of  any  county,  city,  township, 
incorporated  village  or  school  district  therein." 

The    decision    of    the  Industrial    Accident    Board    can    be 


GERTRUDE    L.    BLYNN   vs.    CITY   OF   PONTIAC.  237 

affirmed  only  if  it  is  found  that  a  policeman  of  the  City  of  Pon- 
tiao,  under  the  facts  stipulated,  is  an  employe  and  not  a  pub- 
lic officer. 

Policemen  generally  are  charged  with  the  especial  duty  of 
protecting  the  lives  of  citizens  within  certain  territorial 
limits,  and  of  preserving  the  public  peace.  The  preservation 
of  the  public  peace  being  a  matter  of  public  concern,  it  has 
therefore  been  said  that  policemen  may  be  considered  as  public 
officers.  As  a  rule,  they  are  appointed  under  authority  given 
by  the  State,  and  therefore  have  generally  not  been  regarded 
as  servants  or  agents  or  as  otherwise  bearing  a  contractual  re- 
lation to  the  municipality.  Schmatt  v.  Dooling,  (140  S.  W.  197, 
145  Ky.  240,  36  L.  R.  A.  (N.  S.)  881,  and  note,  Am.  &  Ehg. 
Ann.  Cas.  1913  B,  1078). 

Chief  Justice  Marshall  distinguished  an  office  from  a  sim- 
ple employment  in  the  case  of  United  States  v.  Maurice,  2, 
Brock.  U.  S.  96,  103,  Fed.  Cas.  No.  15747,  as  follows: 

"Although  an  office  is  an  'employment,'  it  does  not  follow  that  every 
employment  is  an  office.  A  man  may  be  certainly  employed  under  a 
contract,  express  or  implied,  to  do  an  act,  or  perform  a  service,  with- 
out becoming  an  officer.  But  if  the  duty  be  a  continuing  one,  which  is 
denned  by  rules  prescribed  by  government,  and  not  by  contract,  which 
an  individual  is  appointed  by  government  to  perform  who  enters  on 
the  duties  appertaining  to  his  station,  without  any  contract  defining 
them,  if  those  duties  continue,  though  the  person  be  changed,  it  seems 
very  difficult  to  distinguish  such  a  change  of  employment  from  an 
office  or  the  person  who  performs  the  duties  from  an  officer." 

In  the  case  of  T.hroop  v.  Langdon,  40  Mich.  673,  Mr.  Justice 
Oooley  expresses  the  distinction  as  follows : 

"The  officer  is  distinguished  from  the  employee  in  the  greater  im- 
portance, dignity,  and  independence  of  his  position;  in  being  required 
to  take  an  official  oath,  and  perhaps  to  give  an  official  bond;  in  the 
liability  to  be  called  to  account  as  a  public  offender  for  misfeasance 
or  nonfeasance  in  office,  and  usually,  though  not  necessarily,  in  the 
tenure  of  his  position." 

The  court  of  criminal  appeal  of  Texas  has  decided  that  "a 
policeman  of  a  city  is  a  public  officer  holding  his  office  as  a 


238 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


trust  from  the  State,  and  not  as  a  matter  of  contract  betweei 
himself  and  the  city ;  the  word  applying  equally  to  every  mem- 
ber of  the  police  force,"  and  that  "a  policeman  is  a  public  of- 
ficer of  the  State  expressly  charged  by  the  statutes  with  en- 
forcing a  large  body  of  the  criminal  law."    Ex  parte,  Preston, 
(Tex.  Or.  App.),  161  S.  W.  115.    See  also  WoodJwll  v.  Mayor, 
150  N.  Y.  450,  (44  N.  E.  1038)  ;  2  McQuillan  on  Municipal  Coi 
porations,  p.  940 ;  5  Id.  p.  5049 ;  28  Cyc.  p.  497. 

Counsel  for  applicant  does  not,  however,  take  exception  t< 
these  authorities  as  to  the  status  of  a  policeman  generally,  bui 
says  that  they  do  not  bear  upon  the  situation  here  presented, 
because  the  City  of  Pontiac  in  its  charter  has  determined  il 
and  has  classified  its  policemen  as  employes.     Assuming  thai 
the  position  of  counsel  for  the  applicant  is  tenable,  that  the 
city  has  the  authority  under  the  home  rule  provision  of  th< 
Constitution   to   determine  that   a  policeman,  who  generall; 
would  be  regarded  as  an  officer,  should  for  the  purposes  of  th< 
workmen's    compensation    law    be    regarded    as    an    employe 
(which  we  do  not  decide),  we  are  not  satisfied  that  such  a  con- 
clusion is  the  proper  one  to  arrive  at  upon  a  careful  study  ol 
the  various  charter  provisions  with  reference  to  the  police  forc< 
of  the  city  of  Pontiac.    A  study  of  these  various  provisions  is 
convincing  that  it  was  the  purpose  therein  manifested  to  leave 
the  policemen  in  the  category  of  appointive  officers,  and  not  to 
make  them  merely  employees.       This,  we  think,  is  apparent 
from  the  wording  of  sections  5  and  6  of  chapter  X  of  the  char- 
ter, which  provides  as  follows: 

"Sec.  5.  The  Police  Department  shall  consist  of  the  chief  of  police 
and  as  many  subordinate  officers,  policemen,  and  employees  as  the 
Commission  shall  by  ordinance  determine. 

"Sec.  6.  The  commission  shall  by  ordinance  make  and  establisl 
rules  for  the  regulation  and  government  of  the  police  department,  pr< 
scribe  and  define  the  powers  and  duties  of  the  officers  and  employees 
of  such  department,  and  shall  prescribe  and  enforce  such  police  regu- 
lations as  will  most  effectually  preserve  the  peace  and  good  order  of 
the  city,  preserve  the  inhabitants  from  personal  violence,  and  protect 
public  and  private  property  from  destruction  by  fire  and  unlawful 
depredation." 


GERTRUDE    L.    BLYNN   vs.   CITY   OF   PONTIAC.  239 

It  is  clear  that  in  the  department  of  police  it  is  sought  to 
distinguish  between  officers  and  employees,  and  in  section  5 
policemen  are  spoken  of  independently  of  employes. 

It  is  true  that  section  10  of  chapter  VII,  which  provides  that 
•each  member  of  the  commission  shall  have  authority  to  em- 
ploy such  employes  as  may  be  necessary  to  conduct  their  sev- 
eral departments  in  an  efficient  manner,  and  that  such  em- 
ployees may  be  discharged  at  the  pleasure  of  the  member  mak- 
ing such  employment,  is  the  only  section  in  the  charter  which 
provides  for  the  appointment  of  policemen.  But,  in  view  of 
the  distinction  clearly  made  in  the  sections  with  reference  to 
the  police  department,  the  word  "employees"  used  in  this  sec- 
tion should  not  be  held  to  have  been  used  in  any  other  than 
the  comprehensive  sense  of  including  all  persons  serving  the 
public  in  these  departments,  whether  filling  an  appointive  of- 
fice or  merely  occupying  a  temporary  contractual  relation  to 
the  municipality  as  an  employe;  and  this  use  of  the  word 
should  not  be  held  to  deprive  a  policeman  of  the  city  of  Pon- 
tiac  of  the  dignity  and  importance  which  it  is  generally  recog- 
nized attaches  to  his  position. 

It  is  said  that  in  the  case  of  Attorney  General  v.  Cain,  84 
Mich.  223  on  page  227  (47  N.  W.  484  on  page  485),  it  was  held 
that  a  policeman  was  not  a  public  officer.  But  that  was  a 
quo  warranto  proceeding,  and  the  court  said : 

"We  do  not  think  the  position  of  policeman,  under  these  circum- 
stances, is  such  an  office  as  authorizes  the  Attorney  General  to  file  an 
information  by  QUO  warranto  in  this  Court  to  test  the  title  to  the  po- 
sition. It  was  said  in  People  v.  DeMill,  15  Mich.  182,  (93  Am.  Dec.  179,) 
that 

"  'There  are  grades  of  positions  denominated  "offices"  which  do  not 
rise  to  the  dignity  of  being  entitled  to  the  notice  of  the  attorney 
general  by  information.'  See,  also,  Throop  v.  Langdon,  40  Mich.  686. 

"It  is  certain  that  the  intent  of  the  charter  is  that  these  policemen 
shall  be  subject  to  the  orders  and  direction  of  the  common  council,  and 
that  such  council  has  the  power  at  any  time  to  remove  them." 

This  case  was  referred  to  in  the  later  case  of  Trainor  v. 
Board  of  Auditors,  89  Mich.  162  (50  N.  W.  809,  15  L.  R.  A. 
95).  While  this  latter  case  says  that  a  policeman  in  the  city 


240  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

of  Adrian  is  not  a  public  officer,  referring  to  Attorney  General 
v.  Cain,  supra.,  it  must  be  said  that  this  decision  goes  only  to 
the  extent  of  holding  that  since  in  that  city  policemen  were 
removable  by  the  council  at  pleasure,  it  would  be  useless  for 
the  attorney  general  to  institute  proceedings  to  determine  who 
was  entitled  to  the  position.  Under  these  circumstances  it 
was  not  such  an  office  as  would  authorize  the  attorney  general 
to  file  an  information  by  quo  warranto  in  this  court  to  test 
the  title  to  the  position. 

Being  satisfied  that  a  policeman  is  an  appointive  officer  un- 
der the  provisions  of  the  charter  of  this  city,  required  to  take 
an  official  oath  of  office,  which  it  appears  was  done  in  this  case,, 
it  follows  that  he  came  within  the  exception  in  subdivision  1,. 
§  7,  pt.  1,  Act  No.  10,  Public  Acts  1912  (Extra  Session  2d  Ed, 
§  3945),  and  is  not  an  employe,  as  defined  by  said  act,  and 
therefore  does  not  come  within  its  provisions.  Any  effort  to 
enlarge  the  scope  of  this  act  should  be  addressed  to  the  Legis- 
lature. 

The  decision  of  the  Industrial  Accident  Board  will  be  re- 
versed, and  the  claim  of  the  applicant  is  disallowed. 


BERT  H.  GROVE  vs.  THE  MICHIGAN  PAPER  CO.  211 


SUPREME  COURT. 

BERT  H.  GROVE, 

Applicant  and  Appellee, 
vs. 
THE  MICHIGAN  PAPER  COMPANY, 

and 

FIDELITY  &  CASUALTY  COMPANY  OF  NEW  YORK, 
Respondents  and  Appellants. 

MASTER  AND  SERVANT — PERSONAL  INJURIES — WORKMEN'S  COMPENSATION 

ACT — INDUSTRIAL  ACCIDENT  BOARD. 

Upon  appeal  from  findings  of  the  Industrial  Accident  Board  de- 
termining that  claimant  received  his  injuries  as  claimed  by  him 
from  a  strain  which  he  received  in  lifting,  where  there  was  evi- 
dence tending  to  support  the  finding  of  the  board,  the  judgment 
must  be  affirmed.  Act  No.  10,  Extra  Session  1912  (2  How.  Stat. 
[2d  Ed.]  §3939  et  seq.). 


Certiorari  to  Industrial  Accident  Board.  Submitted  No- 
vember 13.  1914.  Decided  March  17,  1915. 

Bert  H.  Grove  presented  his  claim  against  the  Michigan 
Paper  Company  for  compensation  to  the  Industrial  Accident 
Board,  which  granted  the  award.  Contestant  and  the  Fidelity 
&  Casualty  Company  of  New  York,  its  insurer,  bring  certiorari. 
Affirmed. 

Charles  H.  Ruttle,  for  appellants. 
Person.,  Shields  A  Silsbee,  for  appellee. 

MOORE,  J.  This  case  is  brought  here  by  certiorari  to  the 
Industrial  Accident  Board.  Mr.  Grove  claims  that  while  he 
was  in  the  employe  of  the  Michigan  Paper  Company  he  re- 
ceived an  accident  which  entitled  him  to  compensation. 

By  proper  proceedings  the  case  found  its  way  to  the  Indus- 
31 


242  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

trial  Accident  Board,  which  affirmed  that  part  of  the  award 
of  the  committee  on  arbitration,  which  established  liability, 
but  modified  the  amount  of  compensation  allowed. 

In  its  return  to  the  writ  of  certiorari  appears  the  following: 

"The  testimony  taken  on  the  hearing  before  the  committee  on 
arbitration  was  imperfectly  taken  and  imperfectly  transcribed;  the 
testimony  as  actually  transcribed,  with  the  notes  of  the  reporter  show- 
ing omissions  included,  with  the  exception  of  qualifying  questions 
being  in  narrative  form,  is  hereto  attached  as  Exhibit  4." 

A  finding  of  facts  is  returned  which  reads  as  follows: 

"(1)  The  claimant,  Bert  Grove,  was  employed  by  one  C.  W.  Bred- 
ing  of  Plainwell,  Mich.,  in  February,  1913,  and  had  worked  for  him 
for  several  months  prior  thereto  as  a  blacksmith. 

"(2)  In  March,  1913,  the  applicant,  while  so  employed  by  said  C. 
W.  Breding,  in  the  regular  course  of  his  duties  shoeing  horses,  was 
suddenly  jerked  by  one  of  the  horses,  causing  a  severe  pain  in  the 
region  of  the  groin.  He  continued  to  work  for  about  two  weeks  and 
then  went  to  see  Dr.  Stuck  of  Plainwell.  Dr.  Stuck  gave  him  treat- 
ment and  recommended  that  he  see  Dr.  McNair  of  Kalamazoo.  He 
went  and  saw  Dr.  McNair  on  April  5th,  rested  one  day  which  was 
Sunday,  and  then  returned  to  his  regular  work  of  horseshoeing,  con- 
tinuing such  work  until  about  July  1,  1913.  During  the  month  of 
July  he  was  on  his  brother's  farm  spending  his  time  in  resting  and 
fishing  and  was  feeling  well.  The  trouble  caused  by  the  jerk  from 
the  horse,  which  appears  to  have  been  an  aneurysm,  had  practically 
disappeared. 

"(3)  On  August  1,  1913,  the  applicant  entered  the  employ  of  the 
Michigan  Paper  Company  at  Plainwell  as  a  helper  on  the  beaters  at 
a  wage  of  $2.00  a  day;  his  duties  being  the  lifting  and  moving  of 
sacks  of  alum  and  sulphite  and  other  material  necessary  in  the  manu- 
facture of  paper,  such  sacks  varying  in  weight  from  100  to  200  pounds. 

"(4)  On  September  15,  1913,  claimant,  while  loading  a  truck  with 
the  sacks  mentioned,  sustained  the  alleged  accident,  for  which  com- 
pensation is  claimed  in  the  following  manner:  'I  had  lifted  quite  a 
number,  but  the  last  two  days  I  was  here  the  man  who  worked  with 
me  was  sick  and  I  had  to  do  the  work  for  two  men.  I  was  loading 
the  truck,  and  stooped  down  to  get  the  alum,  and  pulled  one  sack  like 
this  (motioned),  and  then  I  reached  down  like  this  (motioned)  *.p  pick 
up  another  and  I  felt  this  artery  give  way,  *  *  *  and  I  sat  down  on 
the  floor.' 

"(5)  That  the  accident  of  September  15,  1913,  caused  a  rupture  of 
the  femoral  artery  in  the  right  leg,  which  immediately  necessitated 


BERT  H.  GROVE  vs.  THE  MICHIGAN  PAPER  CO.  243 

claimant's  giving  up  his  duties  and  undergoing  an  operation  which 
was  performed  on  September  26,  1913,  at  Kalamazoo,  Mich.  The  con- 
dition of  the  Aneurysm  at  the  time  of  the  operation  was  very  serious, 
being  a  pulsating  tumor  about  four  to  six  inches  in  diameter." 

It  is  the  claim  of  the  defendants  that  the  condition  of  Mr. 
Grove  is  due  to  what  happened  at  the  blacksmith  shop  in  Feb- 
ruary, 1913,  and  not  to  what  happened  September  15th,  1913; 
while  it  is  the  claim  of  Mr.  Grove  that  he  had  recovered  from 
the  strain  he  received  in  the  blacksmith  shop,  and  that  his 
present  condition  was  due  to  what  happened  in  September, 
1913. 

It  has  already  appeared  that  all  the  evidence  taken  before 
the  board,  is  not  returned.  It  also  appears  there  is  testimony 
in  the  record  tending  to  establish  each  of  these  theories.  This 
being  the  situation  disclosed  we  do  not  understand  that  we  are 
to  weigh  these  conflicting  claims. 

In  Rayner  vs.  Sligh  Furniture  Company,  180  Mich.  168  (146 
N.  W.  665),  JUSTICE  KUHN  speaking  for  the  court,  said: 
''There  being  evidence  to  support  this  finding  of  fact  by  the 
terms  of  the  act,  (part  3,  section  12,  Act  No.  10.  Public  Acts, 
Extra  Session,  1912),  it  becomes  conclusive." 

Counsel  for  appellants  argue  many  interesting  questions 
which  we  think  it  unnecessary  to  pass  upon  now. 

The  judgment  of  the  Industrial  Accident  Board  is  affirmed 
with  costs  against  appellants. 


244  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

KATE  VEREEKE, 

Claimant  and  Appellee, 

vs. 

CITY  OF  GRAND  RAPIDS, 

Defendant  and  Appellant. 

MASTER  AND  SERVANT — WORKMEN'S  COMPENSATION — INDUSTRIAL  ACCI- 
DENT BOARD — STIPULATION — CONTRACTS — AMOUNT  OF  COMPENSATION — 
WAIVER. 

Where  claimant  and  contestant  agreed  and  stipulated,  in  order  to 
avoid  expense,  that  the  Industrial  Accident  Board  should  con- 
sider a  claim  for  compensation  as  a  full  board  as  if  the  ques- 
tions had  been  arbitrated  and  decision  reached,  also  stipulating 
that  the  deceased  earned  $19.50  weekly,  of  which  he  contributed 
$12  to  claimant,  and  where  evidence  was  introduced  at  the  hear- 
ing before  the  board  by  the  claimant,  without  relying  upon  the 
alleged  stipulation,  and  the  board  made  an  order  granting  $6 
a  week  for  three  hundred  weeks,  the  order  of  the  board  will 
not  be  reversed  on  the  theory  that  it  was  bound  by  the  amounts 
stated  in  the  stipulation.  Act  No.  10,  Extra  Session  1912  (2  How. 
Stat.  [2d  Ed.]  §3939  et  seq.). 


Certiorari  to  the  Industrial  Accident  Board.  Submitted  Jan- 
uary 14,  1915.  Decided  March  17,  1915. 

Kate  Vereeke  presented  her  claim  for  compensation  for  the 
accidental  death  of  David  Vereeke  while  he  was  employed  by 
the  city  of  Grand  Rapids.  An  order  awarding  compensation  is 
reviewed  by  claimant  upon  certiorari.  Affirmed. 

Ellis  d  Ellis,  for  claimant. 

R.  M.  Ferguson,  for  defendant. 

MOORE,  J.  This  is  certiorari  to  the  Industrial  Accident 
Board,  brought  by  Kate  Vereeke  as  claimant  against  the  city 
of  Grand  Rapids,  for  compensation  for  the  death  of  her  son, 
David  Vereeke,  who  was  killed  while  in  the  discharge  of  his 


KATE  VEREEKE  vs.  CITY  OF  GRAND  RAPIDS.  245 

duties  as  an  employe  of  the  city  of  Grand  Rapids.  At  the  in- 
ception of  this  cause,  the  parties,  desiring  to  avoid  the  expense 
and  delay  of  arbitration,  entered  into  a  stipulation  whereby 
they  waived  the  action  of  arbitrators.  The  stipulation  con- 
tained the  following: 

"That  the  arbitration  of  the  matters  in  difference  between  the  par- 
ties hereto,  provided  for  in  said  Workmen's  Compensation  Law,  be  and 
the  same  is  hereby  waived,  and  the  decision  of  said  matters  is  hereby 
submitted  to  the  Industrial  Accident  Board,  sitting  as  a  full  board, 
the  same  as  if  this  cause  had  proceeded  to  arbitration  under  said  law 
and  the  decision  on  arbitration  therein  had  been  appealed  from  and 
said  cause  thereby  brought  before  the  full  board  on  appeal  from  such 
decision.  It  is  further  stipulated  and  agreed  that- the  decision  of  said 
board  in  this  cause  pursuant  to  this  stipulation,  and  based  upon  the 
facts  set  forth  herein,  shall  be  valid  and  binding,  and  shall  have  the 
same  validity,  force,  and  effect  as  if  said  cause  had  proceeded  in  arbi- 
tration in  due  course,  and  was  brought  before  the  full  board  on  appeal 
duly  taken  from  the  decision  of  an  arbitration  committee  therein." 

The  stipulation  showed  the  amount  earned  was  $19.50  a 
week  of  which  he  contributed  to  his  mother  $12.00  a  week. 

This  stipulation  was  signed  on  the  5th  day  of  March,  1014. 
After  the  signing  of  it  and  before  action  was  taken  by  the  In- 
dustrial Accident  Board,  the  father  of  the  deceased,  whom  the 
mother  had  divorced,  attempted  to  prevent  the  mother  from 
obtaining  any  benefit  under  the  Compensation  law,  and  filed 
with  the  Industrial  Accident  Board  objections  to  her  claim,  in- 
sisting she  was  not  dependent  upon  her  son.  The  return  of 
the  Accident  Board  contains  the  following: 

"That  a  petition  was  filed  in  said  cause  by  Cornelius  Vereeke,  the 
former  husband  of  the  applicant,  Kate  Vereeke,  claiming  for  reasons 
set  forth  in  said  petition  that  the  applicant,  Kate  Vereeke,  was  not 
entitled  to  receive  or  recover  any  compensation  in  said  cause;  that 
said  cause  came  on  to  be  heard  before  the  Board  on  due  notice  to  all 
the  parties,  said  hearing  being  held  at  the  office  of  the  Industrial  Acci- 
dent Board  on  the  22d  day  of  April,  1914,  and  that  said  Cornelius 
Vereeke  did  not  appear  at  said  hearing  and  did  not  offer  or  file  any 
proofs  tending  to  support  his  said  petition;  that  on  said  hearing  in 
said  cause,  said  applicant,  Kate  Vereeke,  was  sworn  as  a  witness 
in  her  behalf." 


246  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

After  counsel  for  Mrs.  Vereeke  concluded  his  examination 
of  her  the  following  occurred: 

"Mr.  Reaves:  Q.  What  other  income  did  you  have,  Mrs.  Vereeke,. 
besides  the  $12.00  Dave  gave  you? 

"A.  John,  my  little  boy,  just  commenced  to  work  about  a  year  ago 
next  June,  he  ain't  very  strong,  so  he  just  got  little  odds  and  ends 
working  in  five-cent  shows  and  like  that.  He  went  to  school  and 
worked  after  school  in  the  Vaudette;  he  was  usher  there. 

"Mr.  Reaves:    Q.    That  was  all  the  income  you  had? 

"A.  John  wasn't  getting  very  much  in  the  Yaudette,  I  got  a  little 
from  him,  and  I  had  an  old  man  there,  I  got  some  from  him,  too. 

"Q.     The  old  man  boarded  there? 

"A.     Yes,  sir. 

"Q.     How  much  did  you  get  from  him? 

"A.     Four  dollars. 

"Q.     How  long  was  he  boarding  there? 

"A.    A  couple  of  years. 

"Mr.  Allen:     He  was  your  father? 

"A.     Yes  sir,  he  was  my  pa." 

No  further  explanation  was  made  of  her  relations  with  her 
father  or  her  son  John. 

The  Accident  Board  made  an  order  allowing  Mrs.  Vereeke 
six  dollars  a  week  for  three  hundred  weeks,  and  a  present  pay- 
ment of  $124.  Mrs.  Vereeke  seeks  a  review  of  this  order  claim- 
ing: 

"First:  Assuming  that  the  Board  had  the  right  to  go  outside  of 
the  stipulated  facts,  there  was  nothing  in  the  evidence  that  could 
justify  the  decision  of  the  Board. 

"Second:  The  parties  having  agreed  upon  the  facts,  the  statute 
delegated  no  authority  to  the  Board  to  disregard  the  agreement. 

"Third:  The  Board  having  authorized  a  stipulation,  and  the  parties 
having  stipulated,  the  agreement  should  be  treated  the  same  as  a 
case  made  or  a  stipulation  of  facts  by  the  parties  in  the  case." 

A  great  many  authorities  are  cited  to  show  that  the  Indus- 
trial Accident  Board  was  bound  by  the  stipulation.  We  think 
it  clear,  however,  that  the  purpose  of  the  stipulation  was  to 
avoid  the  necessity  of  a  hearing  before  arbitrators,  and  to  get 
the  direct  action  of  the  Industrial  Accident  Board. 


KATE  VEREEKE  vs.   CITY  OP  GRAND  RAPIDS.  247 

Section  5,  pt.  3,  of  Act  No.  10,  Public  Acts,  Extra  Session, 
1012.  (2  How.  Stat.  [2d  Ed.]  §  3973),  reads: 

"If  the  employer,  or  the  insurance  company  carrying  such  risk,  or 
Commissioner  of  Insurance,  as  the  case  may  be,  and  the  injured  em- 
ploye reach  an  agreement  in  regard  to  compensation  under  this  act, 
a  memorandum  of  such  agreement  shall  be  filed  with  the  Industrial 
Accident  Board,  and,  if  approved  by  it,  shall  be  deemed  final  and  bind- 
ing upon  the  parties  thereto.  Such  agreements  shall  be  approved  by 
said  board  only  when  the  terms  conform  to  the  provisions  of  this  act." 

Section  11  provides  what  shall  be  done  if  a  claim  for  review 
is  filed.  It  is  apparent  from  the  record  that  when  the  di- 
vorced husband  denied  the  right  of  the  claimant  to  an  order 
for  support  growing  out  of  the  death  of  her  son,  that  claimant 
and  her  counsel  proceeded  upon  the  theory  that  a  hearing  be- 
fore the  Industrial  Accident  Board  should  be  had.  It  was  not 
then  urged  that  the  parties  were  bound  by  the  stipulation  but 
without  objection  the  hearing  was  entered  upon. 

It  is  not  necessary  to  intimate  what  the  situation  would 
have  been  if  the  claimant  had  relied  upon  the  stipulation,  nor 
what  the  effect  would  have  been  if  she  had  explained  more  in 
detail  her  relations  with  her  father  and  her  son  John.  She  did 
not  do  either  of  these  things. 

The  order  of  the  Industrial  Board  is  affirmed. 


248  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

LILLIAN  BAYNE, 

Claimant  and  Appellee, 
vs. 

RIVERSIDE  STORAGE  &  CARTAGE  COMPANY, 
Defendant  and  Appellant. 

MASTER    AND    SERVANT — WORKMEN'S     COMPENSATION     ACT — EVIDENCE — 
CAUSE  OF  DEATH. 

Opinion  evidence  of  two  physicians  that  pneumonia  did  not  result 
from  injuries  which  decedent  received  in  the  course  of  his  em- 
ployment, and  which  were  followed  by  his  decease,  contradicted 
by  plaintiff's  experts  who  gave  a  contrary  opinion,  held,  not  to 
justify  the  court  in  reversing  the  finding  of  the  industrial  acci- 
dent board  awarding  compensation. 


Certiorari  by  the  Riverside  Storage  &  Cartage  Company 
and  Standard  Accident  Insurance  Company  to  the  Industrial 
Accident  Board  to  review  a  finding  of  the  board  awarding  com- 
pensation to  Lillian  Bayne  for  the  death  of  her  husband,  Harry 
Bayne.  Submitted  April  29,  1914.  Affirmed  July  24,  1914. 

Keena,  Lightner  d  Owtoby,  for  appellants. 
Frank  C.  Sibley,  for  claimant  and  appellee. 

OSTRANDER,  J.  Claimant's  intestate,  an  employee  of  the 
Riverside  Storage  &  Cartage  Company,  died  September  9, 
1913;  the  cause  of  death  being  pneumonia.  Whether  the  pneu- 
monia was  caused  by  an  accident  arising  out  of  and  in  the 
course  of  decedent's  employment  was  a  question  of  fact,  pre- 
sented first  to  a  board  of  arbitration  and  afterwards  to  the 
commission,  both  of  which  bodies  answered  it  in  the  affirma- 
tive. Claimant's  decedent  was  apparently  a  strong  and  well 
man  and  was  employed  in  the  labor  of  lifting  and  moving 
household  furniture  and  other  objects.  He  quit  work  the  morn- 
ing of  August  27,  1913,  after  lifting,  at  apparent  disadvantage, 


LILLIAN  BAYNE  vs.  RIVERSIDE  STORAGE  &  CARTAGE  CO.  249 

a  heavy  article,  complaining  that  in  lifting  it  he  had  hurt  his 
back.  He  went  to  bed,  and  the  next  day  a  physician  was 
called.  In  five  days  he  became  delirious.  On  September  6th 
Dr.  Stockwell  was  called  and  had  him  removed  to  the  hospital, 
where  he  died.  Dr.  Stockwell  testified  that  when  he  examined 
the  man  on  September  6th  he  displayed  symptoms  of  pneu- 
monia of  two  or  three  days'  duration,  his  vitality  was  lowered, 
his  condition  debilitated,  and  he  was  delirious. 

Both  claimant  and  respondent  were  of  opinion  that  a  con- 
nection between  the  injury  and  the  death  could  be  established 
only  by  the  opinions  of  men  having  extra  knowledge  of  the  sub- 
joct,  and  therefore  physicians,  other  than  the  one  who  attended 
deceased,  were  called  and  their  opinions  taken.  Conduct  of 
the  deceased  prior  to  the  alleged  injury  was  laid  before  them, 
H  appearing  that  he  had  danced  on  a  boat  on  the  evening  of 
August  24,  1913,  had  become  heated,  and  complained  of  being 
chilled ;  that  on  August  25th  and  26th  he  had  worked  as  usual, 
making  no  complaints,  had  lifted  and  carried  a  heavy  object 
in  the  afternoon  of  August  26th,  and  had  complained  that  in 
setting  it  down  he  "must  have  kinked  his  back,"  and  he  said, 
on  the  morning  of  August  27th,  that  the  jar  of  the  wagon  hurt 
his  back  when  it  crossed  the  street  car  track.  Dr.  Stockwell 
and  Dr.  Hitchcock  testified  there  was  no  connection  between 
the  alleged  injury  and  the  pneumonia.  Other  physicians  were 
of  a  contrary  opinion,  asserting  the  pneumonia  to  be  directly 
caused  by  the  injury.  The  case  put  by  the  plaintiff  in  certior- 
ari,  namely,  that  the  employer  is  not  liable  to  his  employee 
for  the  consequences  of  disease  superinduced  by  a  physical 
condition,  the  result  of  the  labors  of  the  employment,  is  not 
the  case  before  us.  There  is  before  us  opinion  evidence,  dis- 
puted it  is  true,  that  the  direct  cause  of  the  pneumonia  w^as 
the  hurt  or  strain  of  the  back  suffered  by  deceased  August 
27th.  We  do  not  understand  it  to  be  contended  that,  if  the 
injury  directly  caused  the  cause  of  death,  the  employer  would 
not  be  liable.  Assuming  that  the  court  would  have  the  right 
to  brush  aside  wrholly  improbable  expert  testimony  or  correct 
the  commission  for  not  doing  so,  we  do  not  feel  warranted  in 


250  MICHIGAN  WORKMEN'S  COMPENSATION  CASES, 

saying  that   the    opinion    evidence   favorable   to    claimant  is 
wholly  improbable.    There  is  therefore  a  dispute  of  fact,  which 
the  commission  has  determined. 
We  find  no  error. 


SUPREME  COURT. 

LEONE  H.  HILLS, 

Applicant  and  Appellee 
vs. 
FRANK  W.  BLAIR,  ET  AL., 

Respondents  and  Appellant. 

1.  MASTER  AND  SERVANT — INDUSTRIAL  ACCIDENT  BOARD — DEATH — WORK- 
MEN'S COMPENSATION  LAW. 

Where  a  section  hand  was  killed  while  he  was  returning  home  at 
noon  for  dinner,  being  struck  by  a  passing  train,  the  burden 
rested  on  his  representatives  to  show,  in  proceedings  before  the 
accident  board,  that  death  resulted  from  an  accident  arising  out 
of  and  in  the  course  of  his  employment. 

2.  SAME — APPEAL     AND    ERROR — CERTIORARI    TO    INDUSTRIAL    ACCIDENT 
BOARD. 

Findings  of  the  industrial  accident  board  which  are  rupported  by 
facts  or  inferences  from  the  testimony  must  be  taken  as  true  on 
certiorari. 

3.  SAME — EMPLOYMENT — DINNER  HOUR. 

Accidents  to  employees  in  the  act  of  going  to  or  from  their  work  are 
not  usually  regarded  as  arising  out  of  the  employment  or  in  the 
course  thereof. 

4.  SAME — RAILROADS. 

The  fact  that  decedent  was  still  on  the  premises  of  his  master,  at  a 
considerable  distance  from  the  place  at  which  his  work  was  done, 
did  not  bring  him  within  the  exception  to  the  rule  which  has 
been  recognized  in  certain  cases  when  the  servant  was  so  near  the 


LEONE  H.  HILLS  vs.  FRANK  W.  BLAIR,  ET  AL.  251 

place  of  his  employment  as  in  effect  to  be  within  the  protection 
of  the  law. 


Certiorari  to  the  industrial  accident  board.  Submitted 
June  22,  1914.  Decided  July  24,  1914. 

Leone  H.  Hills  applied  for  an  award  of  compensation  for  the 
injury  and  death  of  her  husband,  Irwin  E.  Hills,  an  employee 
of  Frank  W.  Blair  and  others  as  receivers  of  the  Pere  Mar- 
quette  Railroad  Company.  From  the  award  granted,  defend- 
ants bring  certiorari.  Reversed. 

0.  C.  Tra$k  (McArthur  &  Dumiebacke,  of  counsel),  for  ap- 
plicant. 

Parker,  Shields  &  Brown  (8.  L.  Merriam  and  J.  C.  Bills,  of 
i-ounsel),  for  respondents. 

STEERE,  J.  This  is  an  appeal  by  respondents,  as  receiv- 
ers of  the  Pere  Marquette  Railroad  Company,  from  an  award 
of  compensation  made  by  the  Michigan  industrial  accident 
board  for  the  accidental  death  of  Irwin  Hills,  at  Williamston, 
Mich.,  on  November  16,  1912,  while  he  was  an  employee  of  said 
railway,  as  a  section  hand.  The  facts  in  the  case  as  testified 
to  by  witnesses  are  practically  undisputed.  The  controversy 
is  over  inferences  which  may  be  drawn  from  the  facts  proven, 
and  conclusions  of  law  thereon. 

On  the  day  in  question  Hills  was  working  during  the  fore- 
noon at  his  regular  employment  in  a  section  crew  along  re- 
spondent's railway  track  east  of  Williamston.  The  crew  re- 
turned to  Williamston  with  their  hand  car  an'd  stopped  for 
dinner  at  the  hand  car  house  by  the  south  side  of  the  track 
shortly  after  11  o'clock,  standard  time,  putting  the  car  inside 
preparatory  to  taking  their  meal.  As  they  were  returning, 
the  smoke  of  a  train  coming  from  the  east  was  seen  in  the  dis- 
tance. It  was  customary  for  the  men  to  carry  their  dinners 
with  them  and  eat  together  at  or  near  where  they  were  at 
work;  but  on  this  day  deceased  had  not  waited  in  the  morn- 
Ing  for  his  dinner  to  be  put  up  by  his  wife,  and  hurried  away 


252  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

to  his  work,  saying  that  if  he  could  get  excused  he  would  be 
home  to  dinner.  After  the  men  had  put  the  hand  car  into  the 
car  house  and  the  others  were  proceeding  to  eat  their  noonday 
meal,  Hills  took  his  coat  and  told  the  foreman  that  he  was  go- 
ing home  for  his  dinner,  to  which  the  foreman  assented,  and 
he  hurried  away.  Just  as  he  left  the  car  house,  the  foreman, 
when  reaching  for  his  dinner  pail,  noticed  a  freight  train  com- 
ing from  the  east  "about  four  or  five  pole  lengths  from  the 
car  house,"  meaning  the  distance  between  telegraph  poles,  and 
told  Hills  to  look  out  for  it.  Answering  that  he  would  be  all 
right.  Hills  hurried  down  the  railway  track  in  a  westerly  di- 
rection towards  the  station.  The  car  house  at  which  the  sec- 
tion men  ate  their  dinner  was  located  1,934  feet  east  of  the 
station,  while  Hills'  home  was  about  half  a  block  north  of  it; 
225  feet  west  of  the  car  house  a  street  crossed  the  railway 
tracks  intersecting  a  wagon  road  which  ran  east  and  west, 
parallel  with  the  railroad  and  just  to  the  north  of  it.  One  of 
the  section  hands  saw  Hills  go  west  on  the  track  as  far  as  the 
street  crossing.  He  could  have  left  the  railroad  at  that  point 
by  the  public  street  and  gone  home  along  the  wagon  road  on 
the  same  side  of  the  railroad  as  his  home.  This  road,  how- 
ever, though  open  to  the  public,  was  not  in  good  condition  for 
travel.  The  men  employed  in  the  yards  were  accustomed  to 
enter  and  leave  at  the  station,  going  to  the  car  house  and  else- 
where along  the  tracks  as  they  found  it  most  conveni- 
ent. There  was  also  a  footpath  along  the  railroad  right  of 
way  between  the  main  track  and  a  side  track,  upon  which  they 
could  walk  in  safety.  The  freight  train,  which  the  foreman 
had  noticed  and  warned  Hills  of,  was  coming  from  the  east  on 
the  main  track  of f the  railway  and  passed  through  the  village 
of  Williamston  without  stopping.  It  was  the  custom  of  such 
trains  when  approaching  Williamston  to  shut  off  steam  and 
slow  down  to  from  8  to  12  miles  an  hour  until  they  could 
catch  the  signal,  when,  if  a  stop  was  not  indicated,  they  would 
increase  their  speed  and  proceed  without  stopping.  No"  stop 
signal  was  set  for  this  train  on  the  day  in  question,  and  it 
passed  through  the  yards  between  the  car  house  and  the  depot 


LEONE  H.  HILLS  vs.  FRANK  W.  BLAIR,  ET  AL.  253 

at  an  estimated  speed  of  from  15  to  18  miles  an  hour.  The 
conductor  and  fireman  of  the  train  testified  that  before  catch- 
ing the  signal  the  train  slowed  down  to  10  or  12  miles.  A 
witness  named  Whipple,  who  was  loading  a  car  with  hay  at 
some  sheds  located  12  or  15  rods  west  of  the  hand  car  house, 
testified  that  as  the  train  wras  approaching  he  saw  a  fellow 
coming  from  the  west  on  a  run  pulling  on  his  coat,  and  no- 
ticed him  stop  on  the  north  side  of  the  track  and  look  to  the 
cast:  from  his  actions  witness  thought  he  was  a  brakeman 
waiting  for  the  train,  and  that  the  train  stopped,  but  "they 
hit  up  quite  a  clip  just  as  soon  as  the  engine  got  by  there;" 
that  this  wras  about  50  rods  from  the  place  where  the  man  was 
killed  by  the  switch.  Being  asked  if  the  man  he  then  saw  was 
deceased,  he  replied: 

"It  was  a  man  with  a  fur  cap  on,  and  when  I  see  who  was  lying  on 
the  ground  it  looked  just  like  the  coat  he  was  putting  on  and  the 
cap  he  had  on,  and,  that  is  all  I  know  about  it." 

A  short  time  after  the  train  had  passed,  the  body  of  Hills 
was  found  lying  beside  the  main  track  approximately  950  feet 
west  of  the  hand  car  house  and  about  1,000  feet  east  of  the 
depot  near  a  stub  switch,  a  lantern  prong  of  which  was  bent 
to  the  west.  There  were  no  eye  witnesses  to  the  accident.  The 
manner  in  which  it  occurred  was  a  matter  of  inference  from 
surrounding  facts  and  circumstances  proven. 

It  was  the  theory  in  behalf  of  claimant  that  deceased  was 
accidentally  struck  by  the  train  as  he  was  traveling  along  the 
track  towards  his  home  and  thrown  against  the  switch  stand- 
ard which  stood  about  20  feet  east  of  where  his  body  was  dis- 
covered. Respondents  contended  that  shortly  after  leaving 
the  car  house,  and  near  the  highway  crossing,  deceased 
hoarded  the  train,  which  was  moving  slowest  at  that  point, 
intending  to  ride  as  far  as  the  depot,  near  his  home,  and  drop 
off,  but  that  as  the  train  increased  its  speed  on  approaching 
the  depot,  after  ascertaining  that  there  was  no  signal  set  for 
s  stop,  he  either  jumped  or  fell,  striking  the  switch  standard, 
and  was  theiebv  killed. 


254  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

The  industrial  accident  board  apparently  adopted  claimant's 
theory  that  deceased  walked,  or  ran,  along  the  railway  ahead 
of  the  oncoming  train  for  a  distance  of  930  feet  from  where  he 
left  his  fellow  wrorkmen  at  the  car  house,  before  the  train  over- 
took him  at  the  switch,  when,  as  he  started  to  pass  by  the 
light  standard  on  the  south  near  the  track,  he  "walked  a  little 
too  close  to  the  car  and  was  struck  by  the  train  and  thrown 
against  the  light  standard ;  the  force  of  the  impact  hurling  his 
body  about  20  feet  to  the  west."  The  board  found  as  a  fact 
that  deceased,  on  his  way  from  the  car  house  to  his  home  for 
dinner,  "was  accidentally  struck  by  said  train  while  he  was 
traveling  towards  the  depot  and  was  thrown  against  the  swtich 
standard  mentioned  in  the  evidence,  causing  death."  As  a 
conclusion  of  law  it  found  that: 

"He  was  still  his  master's  servant  while  so  in  the  act  of  leaving 
his  employment,  and  that  the  employment  covers  not  only  the  time 
during  which  the  workman  is  engaged  in  his  ordinary  labor,  but  also 
a  later  time  during  which  he  is  passing  from  the  surroundings  of  his 
employment  into  surroundings  unrelated  thereto."  Also  holding  "that 
deceased  was  killed  by  an  accident  arising  out  of  and  in  the  course  of 
his  employment." 

Under  the  provisions  of  this  act,  only  that  employee  is  en- 
titled to  compensation  who  "receives  personal  injuries  aris- 
ing out  of  and  in  the  course  of  his  employment."  It  is  to  be 
borne  in  mind  that  the  act  does  not  provide  insurance  for  the 
employed  workman  to  compensate  any  other  kind  of  accident 
or  injury  which  may  befall  him.  The  language  of  the  Michigan 
compensation  law  is  adopted  from  the  English  and  Scotch  acts 
on  the  same  subject,  and,  in  harmony  with  their  interpreta- 
tions, has  been  construed  by  this  court,  in  Rayner  v.  Furniture 
Co.,  180  Mich.  168  (146  N.  W.  665),  as  meaning  that  the  words 
"out  of"  refer  to  the  origin,  or  cause  of  the  accident,  and  the 
words  "in  the  course  of"  to  the  time,  place,  and  circumstances 
under  which  it  occurred. 

In  Ayr  Steam  Shipping  Co.,  Ltd.,  v.  Lendrum,  6  B.  W.  C.  C. 
326,  involving  a  fatal  accident  attended  with  uncertainty  as 
to  details,  the  court  said : 


LEONE  H.  HILLS  vs.  FRANK  W.  BLAIR,  ET  AL.  255 

"I  think  one  may  deduce  from  the  decisions  (1)  that  the  burden 
is  always  upon  the  applicant  to  prove  that  death  resulted  from  an 
accident  arising  out  of  as  well  as  in  the  course  of  the  employment; 
(2)  that  such  proof  need  not  be  direct  but  may  be  by  circumstantial 
evidence,  but  there  must  be  facts  from  which  an  inference  can  be 
drawn,  as  distinguished  from  mere  conjecture,  surmise,  or  probability; 
and  (3)  that  an  award  by  an  arbiter  cannot  stand  unless  the  facts 
found  are  such  as  to  entitle  him  reasonably  to  infer  his  conclusion 
from  them." 

It  is  contended  by  appellants  that  the  facts  proven  here  do 
not  in  reason  support  the  inference  of  the  board  as  to  the  man- 
ner in  which  deceased  met  his  death,  but,  on  the  contrary,  con- 
clusively show  that  he  was  killed  in  an  attempt  to  board  or 
leave  a  moving  train,  precluding  any  award  under  the  ruling 
in  Pope  v.  Hill's  Plymouth  Co.,  5  B.  W.  C.  C.  175,  in  which  case 
a  workman  in  a  colliery  going  home  to  his  dinner  on  the  prem- 
ises of  his  employer  was  killed  in  attempting  to  jump  on  a 
passing  tramcar.  It  is  further  urged  as  a  defense  that,  if  it 
cannot  be  said  as  a  matter  of  law  a  finding  of  fact  should  have 
been  made  as  appellants  contend,  it  should  at  least  be  held 
that  the  proven  facts  are  equally  consistent  with  either  one  of 
the  two  alternatives,  and  no  inferences  can  legitimately  be 
drawn  to  support  an  award. 

We  are  not  prepared  to  hold  that  the  findings  of  fact,  as  to 
the  manner  of  the  accident,  are  entirely  without  evidential 
support,  either  direct  of  by  inference.  They  are  therefore  to 
be  taken  as  conclusive  under  the  statute.  Accepting  them  as 
such,  do  they  sustain  the  conclusion  of  law  that  Hills'  death 
arose  out  of  and  in  the  course  of  his  employment. 

It  is  well  settled  that  the  burden  rests  upon  the  one  claiming 
compensation  to  show  by  competent  testimony,  direct  or  cir- 
cumstantial, not  only  the  fact  of  an  injury,  but  that  it  occur- 
red in  connection  with  the  alleged  (employment,  and  both 
arose  out  of  and  in  the  course  of  the  service  at  which  the  in- 
jured party  was  employed. 

While  occasional  exceptions  are  noted,  as  in  the  case  of 
most  rules,  it  is  laid  down  by  the  authorities  as  a  general  rule 
that  accidents  which  befall  an  employee  while  going  to  or  from 


256  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

his  work  are  not  to  be  regarded  as  in  the  course  or  arising  out 
of  his  employment.  Boyd  on  Workmen's  Compensation,  § 
486;  Harper  on  Workmen's  Compensation,  §  34;  1  Bradbury 
on  Workmen's  Compensation  (2d  Ed.),  p.  404. 

This  inquiry,  therefore,  narrows  down  to  whether  this  is  an 
exception  to  the  general  rule.  As  deceased  was  doing  no  work 
he  was  required  to  perform  in  fulfillment  of  his  contract  of 
employment,  the  contention  that  it  is  an  exception  rests  mainly 
upon  the  claim  that  when  killed  he  was  yet  on  the  premises  of 
his  employer,  going  from,  and  in  the  vicinity  of,  his  place  of 
employment.  No  question  is  involved  of  exceptions  by  the 
terms  of  hiring,  of  the  employee  being  required  to  work  over- 
time, or  of  any  interruption,  unusual  kind  of  work  being  done, 
or  other  special  circumstances  in  connection  with  the  employ- 
ment. The  only  unusual  and  special  thing  shown  in  that  con 
nection  is  the  fact  that  at  the  noon  hour,  contrary  to  previous 
usage  and  custom,  he  left  his  place  of  employment  and  fellow 
workmen  to  go  elsewhere  on  a  mission  of  his  own,  not  con- 
nected with  his  employer's  business,  but  to  please  himself ; 
the  occasion  being  that  he  had  failed  to  bring  with  him  his 
dinner  as  was  customary  with  the  crew  and  as  he  had  always 
done  before.  Can  it  be  said  he  was  then  engaged  in  his  em- 
ployer's business,  discharging  any  duty  or  on  any  errand  con- 
nected with  his  employment? 

In  applying  the  general  rule  that  the  period  of  going  to  and 
returning  from  work  is  not  covered  by  the  act,  it  is  held  that 
the  employment  is  not  limited  by  the  exact  time  when  the 
workman  reaches  the  scene  of  his  labor  and  begins  it,  nor  when 
he  ceases,  but  includes  a  reasonable  time,  space,  and  oppor- 
tunity before  and  after,  while  he  is  at  or  near  his  place  of  em- 
ployment. One  of  the  tests  sometimes  applied  is  whether  the 
workman  is  still  on  the  premises  of  his  employer.  This,  while 
often  a  helpful  consideration,  is  by  no  means  conclusive.  A 
workman  might  be  on  the  premises  of  another  than  his  em- 
ployer, or  in  a  public  place,  and  yet  be  so  close  to  the  scene  of 
his  labor,  within  its  zone,  environments,  and  hazards,  as  to  be 
in  effect  at  the  place  and  under  the  protection  of  the  act, 


LEONE  H.  HILLS  vs.  FRANK  W.  BLAIR,  ET  AL.  257 

while,  on  the  other  hand,  as  in  the  case  of  a  railway  stretching 
endless  miles  across  the  country,  he  might  be  on  the  premises 
of  his  employer  and  yet  far  removed  from  where  his  contract 
of  labor  called  him.  The  protection  of  the  law  does  not  extend, 
except  by  special  contract,  beyond  the  locality,  or  vicinity,  of 
the  place  of  labor. 

"It  is  not  a  sufficient  test  that  the  workman  should ,  be  on  the 
premises  of  the  employer;  but  it  may  be  sufficient  that  he  is  in  such  a 
state  of  proximity  as  may  be  treated  as  a  reasonable  margin  in  point 
of  space."  Hoskins  v.  Lancaster,  3  B.  W.  C.  C.  476. 

Upon  this  subject,  and  leading  directly  to  the  protection 
which  the  act  gives  the  employee  during  the  noon  intermis- 
sion, it  is  said  in  Boyd  on  Workmen's  Compensation,  §  481 : 

"A  workman's  employment  is  not  confined  to  the  actual  work  upon 
which  he  is  engaged,  but  extends  to  those  actions  which  by  the  terms 
of  his  employment  he  is  entitled  to  take  or  where  by  the  terms  of 
his  employment  he  is  taking  his  meals  on  the  employer's  premises. 
(Brice  v.  Lloyd.  2  B.  W.  C.  C.  26.)  In  other  words  a  workman  does 
not  lose  his  character  as  a  workman  while  eating  his  lunch  on  his 
employer's  premises  at  a  place  where  he  may  safely  do  so  and  not 
at  an  especially  forbidden  place  or  place  of  obvious  danger.  But  this 
rule  would  not  apply  to  cases  where  the  employee  leaves  the  premises 
of  his  employer  to  eat  his  lunch  during  the  time  set  apart  for  this 
purpose." 

To  the  same  effect  it  is  said  in  Ruegg  on  Employers'  Liability 
and  Workmen's  Compensation,  p.  377 : 

"In  one  sense,  it  may  be  said  to  be  a  part  of  his  duty  to  get  to  such 
place,  but  if  his  method  of  traveling  is  not  controlled  by  the  em- 
ployer, if  he  is  a  free  agent,  it  is  thought  this  qualified  duty  is  not 
sufficient  to  raise,  at  the  time,  the  relation  of  employer  and  workman. 

"The  same  may  be  said  with  respect  to  the  time  occupied  in  re- 
turning home  from  work,  and  of  intervals  allowed  for  meals  when 
spent  off  the  employer's  premises." 

The  rules  of  presumption  and  inference  which  often  go  far 
to  assist  a  claimant  in  establishing  his  case  where  a  workman 
is  found  dead  at  the  scene  of  his  labor  are  of  scant  application 

33 


258  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

here.  When  the  employee  dies  at  his  post  of  duty,  a  presump- 
tion may  reasonably  be  entertained  that  he  was  then  perform- 
ing his  duty  and  engaged  in  the  work  for  which  he  was  em- 
ployed, from  which  a  causal  relation  between  his  employment 
and  the  accident  may  be  inferred;  but  it  is  shown  here  that 
deceased  left  the  locality  and  sphere  of  his  employment  at  a 
time  when  work  was  suspended,  that  he  was  doing  nothing 
within  the  scope  of  his  employment,  was  not  under  the  direc- 
tion or  control  of  his  employer,  and  went  away  for  purposes 
of  his  own,  going  where  and  as  he  pleased.  Though  he  was 
traveling  on  his  employer's  premises  when  injured,  he  was 
then  950  feet  away  from  where  any  duty  in  the  line  of  his  em- 
ployment called  him,  and  had  selected  his  own  route.  But  a 
sbort  distance  from  where  he  left  the  car  house  he  could  have 
turned  by  a  public  street  onto  a  wagon  road  along  which  he 
could  have  gone  to  his  home,  and  a  safe  footpath  was  also 
available  to  him  along  the  right  of  way.  The  custom  of  em- 
ployees to  travel  along,  the  railroad  in  going  to  and  from  their 
work,  when  it  is  shown  that  there  was  another  and  safe  way 
which  they  might  have  taken,  is  not  of  controlling  import- 
ance. At  the  same  distance  deceased  was  injured,  from  the 
place  of  employment,  they  would  be  at  most  but  mere  licen- 
sees. In  Caton  v.  Steel  Co.,  39  Scot.  L.  R.  762,  it  was  held  that 
the  injury  did  not  arise  out  of  and  in  the  course  of  the  em- 
ployment of  a  laborer  who,  at  the  conclusion  of  his  day's  work, 
was  knocked  down  and  killed  by  a  passing  engine  230  yards 
from  where  he  had  been  working,  while  walking  home  along  a 
private  railway  track  belonging  to  his  employer,  which  many 
of  the  men  employed  at  the  same  place  were  in  the  habit  of 
using  in  going  to  and  from  thier  work.  The  court  there  said : 

"The  deceased  at  the  time  of  the  accident  had  ceased  his  work,  had 
left  the  place  where  he  did  it,  and  was  on  his  way  home.  He  had 
at  the  time  no  duty  to  fulfill  to  his  master,  and  his  master  had  no  duty 
to  fulfill  towards  him.  The  relation  of  master  and  servant  had  ended 
for  the  day,  he  having  fulfilled  his  work  and  left  the  place  wh^re  his 
work  was  being  done." 

Under  the  undisputed  testimony  in  this  case,  and  accepting 


MRS.  RUDOLPH  RECK  vs.  FRANK  B.  WHITTLESBERGER.    259 

the  findings  of  fact  made  by  the  board  as  conclusive,  claimant 
has  failed  to  show  such  relations  of  cause  and  effect  between 
the  accident  and  the  duties  of  the  party  injured  to  his  em- 
ployer as  will  support  a  conclusion  of  law  that  the  injury 
arose  out  of  and  in  the  course  of  the  employment. 

The  decision,  or  award,  herein  is  therefore  reversed  and  set 
aside. 


SUPREME  COURT. 

MRS.  RUDOLPH  KECK, 

Applicant  and  Appellee, 
vs. 

FRANK  B.  WHITTLESBERGER, 

Defendant  and  Appellant. 

1.  MASTER  AND  SERVANT — WORKMEN'S  COMPENSATION  ACT— INDUSTRIAL 
ACCIDENT  BOARD — EVIDENCE. 

Findings  of  fact  handed  down  by  the  industrial  accident  board, 
on  hearings  pursuant  to  statute,  are  conclusive,  in  the  absence 
of  fraud,  if  any  competent,  legal  evidence  is  produced  to  sustain 
the  facts  so  found.  Act  No.  10,  Extra  Session  1912  (2  How. 
Stat.  [2d  Ed.]  §  3939  et  seq.). 

2.  SAME — HEARSAY — ESTATES  OF  DECEDENTS. 

Although  statements  made  by  an  injured  employee  relating  to  his 
feelings,  mental  or  physical,  are  admissible  in  evidence  in  pro- 
ceedings under  the  compensation  act,  statements  made  as  to  the 
cause  of  the  accident  or  source  of  injury  are  not  admissible. 
But  it  is  not  required  by  the  statute  that  the  decision  of  the 
board  must  in  all  cases  be  reversed  because  error  may  have  been 
committed  in  the  admission  of  incompetent  testimony,  when  there 
appears  in  the  record  a  legal  basis  for  its  findings. 


2*0  MICHIGAN  WORKMEN'S  COMPENSATION  CASES 

3.    SAME — REFOBT  OP  Accn&rr. 

official  report  of  an  accident,  filed  with  the  industrial 
board,  as  required  by  law.  where  the  employer  had  ample 
opportunity  to  satisfy  himself  of  the  facts,  and  all  sou: 
formation  were  at  bis  command  when  he  made  the  report,  may  be 
taken  as  prim*  facie  eTidence  that  an  accident  occurred  in  the 
manner  set  fortb.  which  fact  the  evidence  did  not  und  t 


Certiorari  to  tbe  Industrial  Accident  Board.  Submitted 
April  30,  1914.  Decided  July  24  I'M 4 

Application  to  tbe  Industrial  Accident  Board  for  aii  award 
of  compensation  against  Frank  B.  Whittlesberger  for  the  death 
of  Rudolph  Reck.  A  judgment  for  tbe  applicant  is  reviewed 
by  said  Wbittlesberger  on  writ  of  certiorari.  Affirmed. 

Botcen.  Douglas.  Eaman  d  Barbour.  for  appellant. 
John  Dohrma*.  for  appellee. 


J.  Tbis  case  is  before  us  upon  a  writ  of  certiorari 
to  review  a  decision  or  determination  of  the  industrial  acci- 
dent board  of  Michigan  affirming  an  award  of  s-J.CoO  made  by 
a  committee  of  arbitration  against  Frank  B.  Whittlesberger. 
tbe  appellant,  in  favor  of  the  widow  of  Rudolph  Reck,  whose 
death  is  charged  to  have  resulted  from  an  injury  sustained 
while  in  appellant's  employ.  Tbe  proceedings  were  insti 
tnted  and  conducted  under  and  by  virtue  of  A«t  N<>.  1".  Pub. 
Acts  1912  lExtr  -  n  n>. 

Pursuant  to  section  11  of  said  act  the  industrial  accident 
board  reviewed  the  decision  of  said  committee  of  arbitration 
and  such  records  as  were  kept  by  it,  including  the  testimony 
it  had  taken.  The  return  to  this  writ  states,  with  some  slight 
corrections  which  are  made,  that  all  the  material  testimony 
is  correctly  and  sufficiently  set  forth  in  appellant's  petition  for 
a  consideration  of  the  questions  raised. 

The  record  discloses  that  on  January  12.  101.0..  said  Rudolph 
Reck,  a  baker  by  trade,  died  at  a  hospital  in  Detroit  of  - 
pneumonia,  which   resulted,    as   his   physir-ian   testified,   from 


MRS.  RUDOLPH  RECK  vs.  FRANK  B.  WHITTLESBERGER.  3H 

•jk-  sepsis  developed  from  an  infected  wound  in  hiss  hand, 

Haiim-d  TO  June  been  r-ansed.  on  December  26.  1912,  by  a  nail 

:ne  fur-]  with  which  he  was  firing  an  oven  in  appellant's 

D  Randolph  street,  in  --air]  city,  where  deceased  was 

then  employed. 

.[.  or  room  in  which  deceased  was  working  at 

-•j»  tailed  the  initial  injnrr  was  about 

I  and  40  feet  \vjd<-.  find  on  that  day  two  other  bak- 

;it  work  in  the  room  with  him.  a  boy  also  being  with 

Thf-ru  in  th<-  fifiM-noon.    Deceased  finished  his  work  for  the  day 

•jsual.  and  left  at  the  regular  quitting  time,  which 
anon  rn.     His  daughter  testified  that  he  arrived 

that  evening  a  litle  later  than  his  customary  time,  and  showed 
her  an  injury  where  he  had  hurt  his  hand  at  or  near  the  thumb, 
ing  that  he  chopped  up  a  box  and  "ran  a  nail  in  his 
thumb/'  He  worked  full  time  at  the  shop  the  next  day  and 
until  4  p.  m.  the  succeeding  day.  During  this  time  the  men 
with  whom  he  worked  saw  and  heard  nothing  of  any  accident; 
neither  did  they  observe  anything  unusual  in  his  work  or  con- 
duct. He  did  not.  however,  return  to  work  after  December 

the  day  on  which  he  quit  at  4  o'clock. 

Dr.  Smith,   the   only   medical   witness  who   testified,  first 
treated  deceased  on  January  2.  1913.     At  that  time  his  em- 
:  (-T-  and  fellow  bakers  were  first  informed  of  the  claim  that 
he  had  sustained  an  injury  while  at  his  work.     Dr.  Smith 
ified.  as  before  stated,  that  septic  trouble  originating  with 
wound  in  the  hand  spread  generally  throughout  the  sys- 
tem and  resulted  in  pneumonia,  which  ended  fatally.  This  is 
not  controverted,  but  it  is  urged  that  no  competent  evidence 
-  produced  showing  where    or    how    deceased  injured  his 
hand,  or  that  the  injury  arose  out  of  and  in  the  course  of  his 
employment. 

Following  a  claim  regularly  made  for  compensation  by  the 

widow  under  said  Act  No.  10,  generally  known  as  the 

men's  compensation  act  a  committee  of  arbitration 

lee-ted,  as  provided  by  the  act,  and  hearings  were  held.  One  of 

1  hearings  was  at  the  bakery  where  the  injury  was  claimed 


262  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

to  have  been  received.  None  of  the  employees  saw  the  accident 
or  were  shown  to  have  personal  knowledge  of  when  or  how  it 
occurred.  The  committee  then  threw  the  door  wide  open  for 
hearsay  evidence,  and,  against  objection,  entertained  any  tes- 
timony offered  as  to  what  witnesses  had  heard  deceased  and 
others  say  about  it. 

Appellant's  assignments  of  error  are  as.  follows : 

"First.  In  holding  that  there  was  sufficient  proof  that  Rudolph 
Reck  received  a  personal  injury  arising  out  of  and  in  the  course  of  his 
employment  to  justify  a  decree  in  favor  of  the  claimant. 

"Second.  In  holding  that  hearsay  evidence  offered  for  the  purpose 
of  proving  that  the  deceased  received  a  personal  injury  arising  out  of 
and  in  the  course  of  his  employment  was  admissible,  and  denying  the 
objection  of  your  petitioner  to  its  admission. 

"Third.  In  determining  and  ordering  your  petitioner  to  pay  the 
said  widow  the  sum  of  $2,250,  and  costs,  as  compensation  for  the 
injury  and  attendant  death  of  Rudolph  Reck." 

The  third  assignment  is  manifestly  contingent  on  the  other 
two,  and  calls  for  no  separate  consideration.  The  first  and 
second  present  the  two  questions  of  whether  this  unrestricted 
admission  of  hearsay  testimony  was  reversible  error,  and 
whether  there  was  any  competent  evidence  in  the  case  on  which 
to  base  a  finding  that  the  injury  complained  of  arose  out  of, 
and  in  the  course  of,  deceased's  employment. 

At  the  threshold  of  this  inquiry  we  are  confronted  with  the 
proposition  that  the  board  is  made  by  the  law  creating  it  the 
final  tribunal  as  to  the  facts,  and,  it  having  made  a  finding  of 
facts  legally  sufficient  to  support  the  award,  its  decision  cannot 
be  questioned  by  the  court. 

Section  12  of  part  3  of  said  act  provides: 

"The  findings  of  fact  made  by  said  industrial  accident  board  acting 
within  its  powers,  shall,  in  the  absence  of  fraud,  be  conclusive,  but 
the  Supreme  Court  shall  have  power  to  review  questions  of  law  in- 
volved in  any  final  decision  or  determination  of  said  industrial  acci- 
dent board:  Provided,  that  application  is  made  by  the  aggrieved  party 
within  30  days  after  such  determination  by  certiorari,  mandamus  or 
by  any  other  method  permissible  under  the  rules  and  practice  of  said 
court  or  the  laws  of  this  State,  and  to  make  such  further  orders  in 
respect  thereto  as  justice  may  require." 


MRS.  RUDOLPH  RECK  vs.  FRANK  B.  WHITTLESBERGER.    263 

As  a  legal  conclusion,  no  one  will  deny  that  in  any  judicial 
proceeding  the  competency  of  testimony  offered  in  support  of 
or  against  any  material  fact  is  a  question  of  law.  It  does  not 
follow,  however,  that  the  appellate  court  in  all  instances  must 
set  aside  an  adjudication  because  of  erroneous  admission  or  re- 
jection of  evidence.  The  doctrine  that  prejudice  is  always  pre- 
sumed from  error  is  not  accepted  by  all  students  of  jurispru- 
dence with  complacency,  even  in  those  jurisdictions  where  the 
doctrine  prevails.  Neither  do  we  conceive  that  in  reviewing 
decisions  of  this  board  all  technical  rules  of  law,  often  made 
imperative  by  precedent  in  reviewing  the  action  of  regularly 
constituted  trial  courts,  must  be  applied.  The  board  is  purely 
a  creature  of  statute,  endowed  with  varied  and  mixed  func- 
tions. Primarily  it  is  an  administrative  body,  created  by  the 
act  to  carry  its  provisions  into  effect.  Supplemental  to  this, 
in  order  that  it  may  more  efficiently  administer  the  law,  it  is 
vested  with  quasi  judicial  powers,  plenary  within  the  limits 
fixed  by  the  statute.  Along  the  lines  marked  out  by  the  act 
it  is  authorized  to  pass  upon  disagreements  between  employers 
and  claimants  in  regard  to  compensation  for  injuries,  and  to 
that  end  make  and  adopt  rules  for  a  simple  and  reasonably 
summary  procedure.  Hearings  are  to  be  held  upon  notice  to 
parties  in  interest;  compulsory  process  for  attendance  of  wit- 
nesses and  power  to  administer  oaths  is  given;  the  parties  in 
interest  are  entitled  to  notice,  to  be  heard  and  to  submit  evid- 
ence; a  review,  findings,  a  decision,  and  an  award  of  compen- 
sation are  provided  for,  though  in  the  final  test  resort  must 
be  had  to  the  courts  to  enforce  the  awards.  In  those  proceed- 
ings the  board  does  not  act  solely  as  a  mere  arbitrator.  It  has 
various  plenary  powers  well  defined,  and  its  status  is  unique 
in  the  particular  that  it  performs  in  combination  both  ad- 
ministrative functions  and  certain  of  the  duties  of  a  court,  a 
referee,  and  an  arbitration  board.  Its  findings  of  facts  upon 
hearings  are  conclusive,  and  cannot  be  reviewed,  except  for 
fraud,  provided,  necessarily,  that  any  competent,  legal  evi- 
dence is  produced  from  which  such  facts  may  be  found.  Facts 
cannot  be  evolved  from  the  inner  consciousness  of  that  tribu- 


264  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

nal  on  bare  supposition,  guess,  or  conjecture,  nor  on  rumor  or 
incompetent  evidence.  To  so  determine  the  rights  of  parties 
would  be  to  act  outside  the  authority  conferred  by  the  act,  and 
without  jurisdiction. 

While  it  was  evidently  the  intent  of  this  law  that,  by  con- 
cise and  plain  summary  proceedings,  controversies  arising 
under  the  act  should  be  properly  adjusted,  under  a  sim- 
plified procedure  unhampered  by  the  more  technical  forms 
and  intervening  steps  which  sometimes  cumber  and  de- 
lay regular  litigation,  yet  the  language  of  the  act,  and  pro- 
vision for  review  of  questions  of  law,  indicate  clearly  an  in- 
tent that  the  elementary  and  fundamental  principals  of  a  judi- 
cial injuiry  should  be  observed,  and  that  it  was  not  the  intent 
to  throw  aside  all  safeguards  by  which  such  investigations 
are  recognized  as  best  protected. 

The  rule  against  hearsay  evidence  is  more  than  a  mere  arti- 
ficial technicality  of  law.  It  is  founded  on  the  experience, 
common  knowledge,  and  common  conduct  of  mankind.  Its 
principles  are  generally  understood  and  acted  upon  in  any 
important  business  transaction  or  serious  affair  in  life.  In 
such  matters  men  refuse  to  reply  on  rumor  or  what  some  one 
has  heard  others  say,  and  demand  the  information  at  first 
hand.  The  common,  instinctive  weight  usually  given  such 
evidence  is  illustrated  by  this  statement  of  Dr.  Smith,  after  re- 
lating what  deceased  told  him  as  to  how  he  hurt  his  hand,  "I 
don't  know  anything  about  it;"  and  of  Mrs.  Taylor,  a  daugh- 
ter of  deceased,  who,  in  connection  with  her  testimony  as  to 
what  she  had  been  told,  said,  "I  really  don't  know  myself; 
the  only  thing  I  know  about  this  matter  is  that  the 
night  I  went  home  they  took  him  to  the  hospital."  The  dan- 
ger and  unreliability  of  hearsay  testimony  is  well  exemplified 
in  her  evidence.  She  testified  that  Haberstoh,  a  fellow  work- 
man in  the  shop,  saw  the  accident  and  described  it  to  her,  as 
she  related  it  while  testifying.  This,  on  the  surface,  would 
seem  to  be  about  as  satisfactory  and  convincing  hearsay  evi- 
dence as  could  be  produced.  Had  Haberstoh  been  unavailable, 
it  would  have  been  equally  competent  and  uncontrovertible, 


MRS.  RUDOLPH  RECK  vs.  FRANK  B.  WHITTLESBERGER.    265 

but  it  was  shown  by  Haberstoh  himself  that  he  saw  nothing 
of  any  accident,  and  obtained  his  information  from  Charles 
Ruskei,  the  boy  who  worked  in  the  shop  afternoons,  who  him- 
self saw  nothing,  but  heard  deceased  state  how  he  hurt  his 
hand. 

Coming  directly  to  this  line  of  testimony  as  applied  to  work- 
men's compensation  cases,  it  is  said  in  Boyd  on  Workmen's 
Compensation,  p.  1123: 

"The  statements  made  by  an  injured  man  as  to  his  bodily  or  mental 
feelings  are  admissible,  but  those  made  as  to  the  cause  of  his  illness 
are  not  to  be  received  in  evidence.  The  rule  applies  to  statements 
made  by  a  deceased  workman  to  a  fellow  workman  as  to  the  cause  of 
his  injury." 

And  more  fully  in  Bradbury  on  Workmen's  Compensation, 
I».  403,  as  follows: 

"The  statement  made  by  an  employee  in  the  absence  of  his  em- 
ployer, by  a  deceased  man,  as  to  his  bodily  or  mental  feelings  are  ad- 
missible in  evidence,  but  those  made  as  to  the  cause  of  his  illness  are 
not  admissible  in  evidence  and  where  there  is  no  other  evidence  of 
an  accident  arising  out  of  and  in  the  course  of  the  employment  than 
statements  made  by  a  deceased  employee  in  the  absence  of  his  em- 
ployer, an  award  cannot  be  sustained." 

Tn  Gilbey  v.  Railway  Co.,  3  B.  W.  C.  C.  135,  where  a  work- 
man at  a  meat  market  on  arriving  home  told  his  wife  that  he 
had  broken  his  rib  when  trying  to  save  some  meat  from  slip- 
ping into  the  dirt,  the  court  said: 

"To  hold  such  statements  ought  to  be  admitted  as  evidence  of  the 
origin  of  the  facts  deposed  is,  I  think,  impossible.  Such  a  contention 
is  contrary  to  all  authority." 

This  rule  is  emphasized  to  the  extent  of  even  holding  admis 
sion  of  such  evidence  reversible  error  in  Smith  vs.  Hardman  & 
Holden,  Ltd.,  6  B.  W.  C.  C.  719,  because  the  mind  of  the  trial 
court  might  have  been  "colored  by  his  admitting  statements 
which  are  inadmissible  as  evidence." 

We  do  not  think,  however,  that  under  the  language  used  in 
our  workmen's  compensation  act  the  decisions  of  its  adminis- 


266  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

trative  board  must  be  in  all  cases  reversed  under  the  rule  of 
presumptive  prejudice,  because  of  error  in  the  admission  of 
incompetent  testimony,  when  in  the  absence  of  fraud,  there 
appears  in  the  record  a  legal  basis  for  its  findings,  which  are 
made  "conclusive"  by  statute  when  said  board  acts  within  the 
scope  of  its  authority. 

,As  a  part  of  the  plan  for  a  practical  administration  of  this 
law,  section  17  of  part  3  requires  each  employer  who  elects  to 
come  under  the  provisions  of  said  act  to  keep  a  record  of  in- 
juries "received  by  his  employees  in  the  course  of  their  em- 
ployment,'' and  within  ten  days  after  an  accident  resulting  in 
personal  injury  to  report  the  same  in  writing  to  the  industrial 
accident  board,  on  blanks  printed  for  that  purpose. 

The  first  knowledge  which  came  to  the  board  of  this  acci- 
dent is  contained  in  the  report  of  appellant,  made  by  an  ad- 
mitted agent.  It  is  dated  January  9,  1913,  and  marked  "First 
Report  of  Accident."  It  states,  amongst  other  things,  that 
on  December  26,  1912,  Reck,  a  baker  by  trade,  was  injured; 
the  "cause  and  manner  of  accident"  being  that  he  "was  throw- 
ing wood  in  furnace  and  a  nail  run  in  left  hand  inflicting  a 
deep  gash."  This  report  was  made  three  days  before  Reek's 
death,  and  indicates  that  the  employer,  or  his  representatives, 
had  full  notice  of  the  injury,  with  ample  opportunity  to  inves- 
tigate while  Reck  was  alive,  and  all  sources  of  information 
were  both  fresh  and  available.  A  second  report,  after  Reek's 
death,  made  on  January  15,  1913,  giving  the  same  date  of  the 
accident,  etc.,  states  of  its  "cause  and  manner:" 

"The  injured  was  throwing  wood  in  the  fire  and  a  nail  scratched 
his  left  hand.  He  worked  for  two  or  three  days  after  the  accident, 
when  the  hand  became  infected,  and  he  was  sent  to  the  hospital. 
After  the  hand  had  started  to  heal  nicely  he  contracted  broncho- 
pneumonia,  which  disease  caused  his  death  January  13,  1913." 

We  think  that  such  reports  from  the  employer,  where  all 
sources  of  information  are  at  his  command  when  the  reports 
are  made,  and  he  has  had  ample  opportunity  to  satisfy  himself 
of  the  facts  can  properly  be  taken  as  an  admission,  and,  at 


ANNA  ANDREJWSKI  vs.  WOLVERINE  COAL  CO.  257 

least,  as  prima  facie  evidence  that  such  accident  and  injury  oc- 
curred as  reported. 

No  evidence  was  offered  to  impeach  the  reports  or  to  show 
Uiat  the  accident  occurred  otherwise  than  as  stated  in  them. 
Eliminating  from  consideration  the  hearsay  testimony  errone- 
ously admitted,  which  could  not  affect  either  way  the  legal 
significance  of  such  reports,  the  record  furnishes  legal  sup- 
port for  the  findings  of  fact  made.  Consequently  such  find- 
ings are  to  be  recognized  as  conclusive  under  the  statute. 

The  decision  of  said  industrial  accident  board  is  therefore 
affirmed. 


SUPREME  COURT. 

ANNA  ANDREJWSKI, 

Claimant  and  Appellee, 
vs. 
WOLVERINE  COAL  COMPANY, 

Defendant  and  Appellant. 

1.  MASTER    AND    SERVANT — WORKMEN'S     COMPENSATION — DEATH — CON- 
STRUCTION OF  STATUTE. 

Act  No.  10,  Extra  Session  1912,  providing  compensation  for  in- 
juries to  employees,  or  for  their  death -in  the  course  of  their 
employment  (2  How.  Stat.  [2d  Ed.]  §3939  et  seq.),  is  in  dero- 
gation of  the  common  law  and  should  be  strictly  construed, 
although  it  is  a  remedial  statute  and  creates  a  right  against  one 
who  would  not  otherwise  be  liable. 

2.  SAME — AMOUNT  OF  COMPENSATION. 

Where  a  servant  has  worked  in  his  employment  for  practically  the 
whole  year  preceding  his  injury,  his  average  annual  earnings  are 
known  or  ascertainable  and  the  average  weekly  wages  are  to  be 
determined  by  finding  one  fifty-second  of  the  annual  earnings. 


268  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

3.  SAME — TERM  OF  EMPLOYMENT. 

If  the  workman  has  not  been  employed  during  substantially  the 
entire  year,  but  his  daily  wage  or  salary  is  fixed,  or  known,  his 
average  earnings  as  a  basis  of  compensation  will  be  300  times  the 
daily  wage  or  salary.  In  case  his  employment  has  been  limited  in 
term,  or  there  is  insufficient  data  from  which  to  determine  his 
annual  earnings,  they  are  to  be  determined  by  taking  300  times 
his  daily  wage  or  salary,  or  the  daily  wage  of  similar  workmen  in 
like  employment. 

4.  SAME — IRREGULAR  EMPLOYMENT. 

Decedent  worked  in  a  coal  mine  in  the  Saginaw  valley.  The  em- 
ployment was  not  continuous,  but  operations  were  carried  on  for 
an  average  of  211  days  in  a  year.  Payment  was  fixed  by  contract 
on  the  basis  of  the  number  of  tons  produced,  and  the  amount  that 
each  miner  received  depended  on  the  coal  which  was  sent  up  on 
his  number.  During  the  year  which  preceded  the  death  of  de- 
ceased, the  mine  in  which  he  was  employed  was  operated  148  days, 
and  he  received  $507.45.  While  the  mine  was  not  in  operation, 
he  worked  as  a  cement  block  layer  for  another  employer,  earning 
nearly  the  same  amount  of  wages.  Held,  that  the  first  three 
classes  mentioned  under  section  11  of  the  compensation  act  were 
intended  to  include  workmen  who  were  employed  during  sub- 
stantially the  whole  year  prior  to  the  accident,  and  that  it  would 
not  be  reasonable  or  fair  to  apply  such  methods  of  compensation 
to  the  case  of  deceased,  and  that  the  average  annual  earnings 
should  be  computed  on  the  basis  of  the  average  for  the  preceding 
eight  years,  as  provided  by  the  fourth  classification  under  this 
section  of  the  law. 


Certiorari  to  the  industrial  accident  board.  Submitted  No- 
vomber  5,  1913.  Decided  October  2,  1914.  Rehearing  denied 
January  29,  1915. 

Anna  Andrejwski  presented  her  claim  for  compensation  for 
the  death  of  her  husband,  Joseph  Andrejwski,  against  the  Wol- 
verine Coal  Company.  From  the  order  entered  awarding 
compensation,  contestant  brings  certiorari.  Reduced  and  judg- 
ment entered. 

George  M.  Humphrey   (Humphrey.  Grant  &  Humphrey,  of 
counsel),  for  appellant. 
C ouman s  tC  Gaffneif,  for  appellee. 


ANNA  ANDREJWSKI  vs.  WOLVERINE  COAL  CO.  269 

MCALVAY,  C.  J.  This  case  is  brought  to  this  court  by  the 
appellant  upon  a  writ  of  certiorari  to  review  the  decision  and 
order  of  the  industrial  accident  board  in  affirming  an  award 
theretofore  made  in  said  cause  by  the  arbitration  committee 
therein.  There  appears  to  be  but  little  dispute  upon  the  ma- 
terial facts  in  the  case. 

Joseph  Andrejwski,  deceased,  was  claimant's  husband,  em- 
ployed by  appellant  in  its  mine  No.  2.  On  November  18,  1912, 
in  the  course  of  his  employment,  he  came  to  his  death  by  an 
accident,  which  occurred  without  fault  of  either  party.  At 
this  time  both  the  employer  and  employed  had  voluntarily 
made  their  election  to  come  under  and  be  governed  by  the  em- 
ployers' liability  and  workmen's  compensation  act,  being  Act 
No.  10  of  the  Public  Acts  of  Michigan,  Extra  Session,  1912. 
(2  How.  Stat.  [2d  Ed.]  §  3939  et  seq.)  Claimant  is  the  sole 
dependent  of  deceased  entitled  to  such  compensation  as  may 
be  granted  under  said  act.  Deceased  had  worked  as  a  minor 
continuously  in  this  mine  for  ten  years  before  this  accident, 
during  all  of  the  time  the  mine  was  being  worked.  This  is  a 
coal  mine  operated  by  appellant,  and  is  located  near  Bay  City 
in  the  Sagiiiaw  valley  district.  This  is  the  principal  coal  min- 
ing district  in  this  State,  and  includes  the  operation,  under 
similar  conditions,  of  a  number  of  companies  and  mines.  The 
mine  in  question  and  the  other  mines  in  this  district  do  not 
run  continuously  during  the  entire  year ;  some  entirely  suspend 
operations  for  several  months  during  the  summer,  and  others 
do  not  operate  during  'a  portion  of  each  month,  in  a  measure 
caused  by  the  fact  that  operations  are  controlled  by  the  sales 
of  the  product,  which  depend  entirely  upon  orders.  Operations 
also  depend  upon  weather  conditions. 

The  record  shows  that  no  mine  in  the  district  runs  or  has 
ever  run  300  days  in  the  year.  It  also  appears  from  the  opera- 
tions of  these  mines  for  the  years  1909  to  1912,  inclusive,  that 
the  coal  mining  industry  in  this  district  has  been  carried  on 
on  the  average  for  only  211  days  in  each  year. 

The  miners  are  paid  on  contract  by  the  ton  and  work  on 
numbers.  The  amount  paid  depends  on  the  amount  each  miner 


270  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

sends  up  on  his  number.  Two  or  three  miners  may  work  to- 
gether and  send  up  the  coal  on  the  number  of  one  of  them.  The 
price  paid  miners  is  regulated  by  what  is  called  a  "scale"  made 
between  the  operators  and  the  union,  and  one  of  the  things  al- 
ways taken  into  consideration  in  fixing  the  wages  of  miners  in 
this  district  is  that  the  mine  does  not  run  steadily  and  the 
miner  can  only  work  when  it  does  run. 

For  the  year  immediately  preceding  deceased's  death,  mine 
No.  2,  in  question,  was  operated  148  days.  On  his  number  coal 
was  sent  up  131  days  for  which  he  received  a  total  of  $507.45. 
During  the  time  when  the  mine  was  idle  in  this  year,  deceased 
was  working  outside  of  this  employment  for  another  employer 
as  a  cement  block  layer  and  earned  $487.14. 

It  is  conceded  that  compensation  is  due  and  payable  to  the 
appellee  as  sole  dependent  of  deceased,  and  it  is  also  conceded 
that  such  compensation  is  to  be  paid  weekly  for  the  period  of 
300  weeks. 

The  sole  question  presented  for  determination  is  the  amount 
of  the  weekly  compensation  to  be  paid.  The  case,  therefore, 
involves  the  construction  of  section  11  of  part  2  of  Act.  No. 
10,  heretofore  mentioned,  which  deals  exclusively  with  the 
matter  of  "compensation."  This  section  reads  as  follows: 

"SEC.  11.  The  term  'average  weekly  wages,  as  used  in  this  act  is 
defined  to  be  one  fifty-second  part  of  the  average  annual  earnings  of 
the  employee.  If  the  injured  employee  has  not  worked  in  the  employ- 
ment in  which  he  was  working  at  the  time  of  the  accident,  whether 
for  the  employer  or  not,  during  substantially  the  whole  of  the  year 
immediately  preceding  his  injury,  his  average  annual  earnings  shall 
consist  of  three  hundred  times  the  average  daily  wage  or  salary  which 
he  has  earned  in  such  employment  during  the  days  when  so  employed. 
If  the  injured  employee  has  not  worked  in  such  employment  during 
substantially  the  whole  of  such  immediately  preceding  year,  his  aver- 
age annual  earnings  shall  consist  of  three  hundred  times  the  average 
daily  wage  or  salary  which  an  employee  of  the  same  class  w-orking 
substantially  the  whole  of  such  immediately  preceding  year  in  the 
same  or  a  similar  employment  in  the  same  or  a  neighboring  place, 
shall  have  earned  in  such  employment  during  the  days  when  so  em- 
ployed. In  cases  where  the  foregoing  methods  of  arriving  at  the 
average  annual  earnings  of  the  injured  employee  cannot  reasonably 
and  fairly  be  applied,  such  annual  earnings  shall  be  taken  at  such 


ANNA  ANDREJWSKI  vs.  WOLVERINE  COAL  CO.  271 

sum  as,  having  regard  to  the  previous  earnings  of  the  injured  em- 
ployee, and  of  other  employees  of  the  same  or  most  similar  class, 
working  in  the  same  or  most  similar  employment,  in  the  same  or 
neighboring  locality,  shall  reasonably  represent  the  annual  earning 
capacity  of  the  injured  employee  at  the  time  of  the  accident  in  the 
employment  in  which  he  was  working  at  such  time." 

The  construction  of  this  section  of  the  statute  is  for  the  first 
time  before  this  court,  and  our  statute,  although  similar  in 
many  respects  to  other  statutes  of  like  import  in 
England  and  some  of  the  United  States,  differs  quite  mater- 
ially from  all  of  them  as  to  the  rules  provided  for  determining 
the  amount  of  compensation  to  be  paid  those  entitled  thereto 
under  it. 

It  will  therefore  be  proper  to  give  consideration  at  the  out- 
set to  the  conditions  giving  rise  to  the  necessity  for  such  legis- 
lation, and  also  the  objects  sought  to  be  accomplished  and  the 
radical  changes  brought  about  by  its  enactment.  Such  legisla- 
tion has  undoubtedly  been  brought  about  by  present  indus- 
trial conditions  which  have  for  years  continued  to  take  in- 
creased toll  from  the  numbers  of  those  employed,  on  account 
of  the  increased  hazards  connected  with  manufacturing,  trans- 
portation, and  kindred  industries. 

Heretofore  if  an  employee  has  been  injured  or  killed  in  any 
employment  in  which  he  was  engaged,  he,  or  those  represent- 
ing him  or  dependent  upon  him,  could  recover  for  such  injury 
or  death  only  when  the  same  could  be  attributed  to  the  neglig- 
ence of  the  employer.  Experience  has  shown  that  such  con- 
ditions were  unsatisfactory,  and  results  arising  from  such 
litigation  often  worked  great  injustice  to  one  or  both  parties. 
From  these  conditions  has  been  evolved  legislation  of  this 
character  upon  the  theory  that  the  industry  which  occasioned 
such  injuries  should,  as  a  part  of  the  cost  of  production,  bear 
the  burden  by  compensation  for  the  same. 

The  act  in  question,  like  all  similar  acts,  provides  for  com- 
pensation, and  not  for  damages,  and  in  its  consideration  and 
construction  all  of  the  rules  of  law  and  procedure,  which  ap- 
ply to  recover  damages  for  negligently  causing  injury  or  death, 


272  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

are  in  these  cases  no  longer  applicable,  and  there  is  substi- 
tuted a  new  code  of  procedure  fixed  and  determined  by  the  act 
in  question.  This  legislation,  then,  is  a  new  departure  and 
creates  a  new  liability,  resting  upon  one  class  in  favor  of  an- 
other, without  reference  to  any  negligent  conduct  of  the  class 
upon  which  the  burden  is  cast.  In  other  words,  this  legisla- 
tion is  wholly  in  derogation  of  the  common  law.  It  is  legisla- 
tion which  awards  compensation  for  the  accidental  industrial 
injuries  to  be  added  to  the  cost  of  production. 

This  statute,  being  in  derogation  of  the  common  law,  should 
be  strictly  construed,  and  that  fundamental  principle  must  be 
applied,  although  it  is  remedial  and  provides  a  remedy  against 
a  person  who  otherwise  would  not  be  liable.  This  act  is  en- 
titled: 

"An  act  to  promote  the  welfare  of  the  people  of  this  State,  relating 
to  the  liability  of  employers  for  injuries  or  death  sustained  by  their 
employees,  providing  compensation  for  the  accidental  injury  to  or 
death  of  employees  and  methods  for  the  payment  of  the  same,  estab- 
lishing an  industrial  accident  board,  denning  its  powers,  etc." 

This  entitling  would  indicate  that  this  legislation  was  justi- 
fied on  the  ground  that  it  is  a  proper  exercise  of  the  police 
power  of  the  State.  In  its  construction  we  enter  a  new  fieldr 
to  consider  only  the  question  of  compensation,  and  to  turn  ab- 
solutely away  from  the  idea  of  damages. 

The  compensation  provided  for  is  based  upon  average  weekly 
wages  of  the  injured  or  deceased  party,  50  per  cent,  of  which 
is  to  be  paid  weekly  to  him  or  his  dependents,  for  various  per- 
iods of  time,  according  to  the  nature  of  the  injury  or  the  length 
of  the  disability.  The  average  weekly  wages  of  the  employee 
must  always  be  determined  by  dividing  his  average  annual 
earnings  by  5± 

By  section  1 1  of  part  '2  of  this  act  the  legislature  specifically 
provided  the  manner  in  which  the  average  annual  earnings  of 
each  employee  should  be  determined  by  making  four  classifi- 
cations, under  one  of  which  every  case  to  be  considered  and 
determined  under  this  statute  must  fall.  Attention  will  now 


ANNA  ANDREJWSKI  vs.  WOLVERINE  COAL  CO.  273 

be  given   to    these    classifications,    quoting    and    construing 
them  in  the  order  in  which  they  appear  in  this  section : 

First.  "The  term  'average  weekly  wages'  as  used  in  this  act  is  de- 
fined to  be  one  fifty-second  part  of  the  average  annual  earnings  of 
the  employee." 

While  this  sentence  is  in  fact  a  definition,  it  is  also  a  classi- 
fication. There  is  practically  no  disagreement  between  the  at- 
torneys for  the  parties  upon  this  matter.  It  is  admitted  that, 
where  an  employee  has  worked  in  the  employment  in  which  he 
was  injured  for  practically  the  whole  year  immediately  preced- 
ing his  injury,  his  average  annual  earnings  are  fixed  and 
known,  and  to  determine  by  this  definition  his  average  weekly 
wages  requires  but  a  simple  mathematical  computation.  That 
this  was  the  legislative  intent  clearly  appears  from  the  initial 
clauses  of  the  second  and  third  classifications  which  imme- 
diately follow,  both  of  which  treat  cases  where  the  injured  em- 
ployee has  not  so  worked. 

Second.  "If  the  injured  employee  has  not  worked  in  the  employ- 
ment in  which  he  was  working  at  the  time  of  the  accident,  whether 
for  the  employer  or  not,  during  substantially  the  whole  of  the  year 
immediately  preceding  his  injury,  his  average  annual  earnings  shall 
consist  of  three  hundred  times  the  average  daily  wage  or  salary  whicn 
he  has  earned  in  such  employment  during  the  days  when  so  employed." 

This  class  is  intended  to  include  those  cases  where  an  em- 
ployee who  has  not  worked  in  the  employment  in  which  he 
was  engaged  'at  the  time  of  his  injury,  whether  for  the  same 
employer  or  not,  during  substantially  the  whole  of  the  year 
immediately  preceding  his  injury,  where  his  daily  wage  or  sal- 
ary earned  is  fixed  and  known.  In  such  case  his  average  an- 
nual earnings  wrill  be  300  times  such  average  daily  wage  or 
salary  earned  in  such  employment  during  the  days  when  so 
employed. 

Third.  "If  the  injured  employee  has  not  worked  in  such  employment 

during  substantially  the  whole  of  such   immediately  preceding  year, 

his  average  annual  earnings  shall  consist  of  three  hundred  times  the 

average   daily  wage  or  salary  which   an   employee  of  the  same  class 

35 


274  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

working  substantially  the  whole  of  such  immediately  preceding  year 
in  the  same  or  a  similar  employment  in  the  same  or  a  neighboring 
place,  shall  have  earned  in  such  employment  during  the  days  when 
so  employed." 

This  class  is  also  intended  to  include  those  cases  where  an 
employee  has  not  worked  in  the  employment  in  which  he  was 
engaged  at  the  time  of  his  injury  during  substantially  the 
whole  of  such  year  immediately  preceding;  there  being,  by  rea- 
son of  the  limited  term  of  service,  no  data  from  which  his  aver- 
age annual  earnings  can  be  determined.  In  such  case  such 
earnings  shall  consist  of  300  times  the  average  daily  wage  or 
salary  which  an  employee  of  the  same  class,  working  substan- 
tially the  whole  of  the  preceding  year,  in  the  same  or  similar 
employment,  in  the  same  or  a  neighboring  place,  shall  have 
earned  in  such  employment  during  the  days  when  so  employed. 

Fourth.  "In  cases  where  the  foregoing  methods  of  arriving  at  the 
average  annual  earnings  of  the  injured  employee  cannot  reasonably 
and  fairly  be  applied,  such  annual  earnings  shall  be  taken  at  such 
sum  as,  having  regard  to  the  previous  earnings  of  the  injured  em- 
ployee, and  of  other  employees  of  the  same  or  most  similar  class, 
working  in  the  same  or  most  similar  employment,  in  the  same  or 
neighboring  locality,  shall  reasonably  represent  the  annual  earning 
capacity  of  the  injured  employee  at  the  time  of  the  accident  in  the 
employment  in  which  he  was  working  at  such  time." 

This  classification  includes  all  cases — 

"Where  the  foregoing  methods  of  arriving  at  the  average  annual 
earnings  of  the  injured  employee  cannot  reasonably  and  fairly  be 
applied." 

This  is  the  sole  test  fixed  by  the  legislature  to  determine 
whether  or  not  a  case  comes  within  this  class. 

The  question  in  the  instant  case  for  the  court,  upon  the  facts 
presented  by  this  record,  is  to  determine  under  the  provisions 
of  which  of  the  four  classifications  of  this  statute  the  averaiiv 
annual  earnings  of  this  employee  must  be  ascertained.  It  is 
clear  that  the  first,  second,  and  third  classes  of  cases  relate  to 
employments  which  continue  during  substantially  the  entire 


ANNA  ANDREJWSKI  vs.  WOLVERINE  COAL  CO.  275 

calendar  year.  About  the  first  there  is  no  question.  The  same 
initial  language  used  in  the  second  and  third  classifications  in- 
dicates that  the  legislature  still  had  in  mind  employments  at 
which  employees  worked  substantially  the  whole  of  the  year 
immediately  preceding  an  injury.  The  employment  in  which 
the  injured  employee  in  the  instant  case  was  engaged  at  the 
time  of  his  injury  was  not  an  employment  of  that  character. 
It  was  not  an  employment  in  an  industry  which  continued 
operations  during  substantially  the  entire  year.  The  record 
shows  that  this  is  the  case,  not  only  in  the  Saginaw  valley  dis- 
trict, but  everywhere  in  the  coal  mining  industry.  It  also 
shows  that  the  miners  were  paid  according  to  the  number  of 
tons  of  coal  mined  by  them,  and  that,  under  the  system  of 
operations,  the  miners  worked  on  numbers;  that  frequently 
two  or  more  miners  get  out  coal  and  send  it  up  to  the  surface 
upon  one  number ;  that  the  man  to  whom  the  number  belonged 
would  receive  the  pay  for  the  entire  output,  and  the  miners 
would  divide  it  among  themselves.  It  also  appears  that  the 
coal  mines  in  the  Saginaw  valley  district  worked  on  an  aver- 
age of  211  days  in  each  year.  How  will  it  be  possible,  in  fixing 
the  average  annual  wages  of  deceased,  to  adapt  these  facts  to 
the  rules  established  by  the  legislature  in  classes  1,  2  or  3? 

In  our  opinion  the  "methods  of  arriving  at  the  average  an- 
nual earnings  of  the  injured  employee"  set  forth  in  these 
classes  "cannot  reasonably  and  fairly  be  applied."  We  must 
therefore  conclude  that  it  comes  within  the  fourth  classifica- 
tion, where  such  average  annual  earnings  must  be  determined 
to  be  such  sum  as,  "having  regard  to  the  previous  'earnings  of 
the  injured  employee,  and  of  other  employees  of  the  same  or 
most  similar  class,  working  in  the  same  or  a  most  similar  em- 
ployment, in  the  same  or  neighboring  locality,  shall  reason- 
ably represent  the  annual  earning  capacity  of  the  injured  em- 
ployee at  the  time  of  the  accident  in  the  employment  in  winch 
he  /a/.s-  working  at  such  time."  Applying  this  rule  to  the  un- 
disputed facts  in  the  instant  case,  we  find  that  he  was  paid 
by  his  employer,  in  this  employment  in  which  he  was  engaged 
during  the  time  the  mine  was  operated  the  preceding  year,  the 


276 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


sum  of  |507.45;  that  the  average  time  in  which  the  coal  min- 
ing industry  operated  in  that  district  was  211  days.  It  is 
clear,  from  the  manner  in  which  the  men  worked  on  numbers 
in  this  employment,  that  the  above  sum  but  approximately 
represents  his  entire  earnings.  The  terms  of  this  fourth  class- 
ification indicate  that  the  amount  of  compensation  in  the 
cases  which  come  within  it  can  only  be  approximated.  We 
have  already  intimated  that  the  legislative  intent  in  enacting 
this  legislation  was  to  place  the  burden  of  compensation  for 
losses  caused  by  industrial  injuries  and  deaths  upon  the  sev- 
eral industries  as  part  of  the  cost  of  production,  in  this  man- 
ner to  be  borne  by  the  public  generally. 

The  foregoing  consideration  of  these  four  classifications 
shows  that  the  term  ''average  annual  earnings''  of  the  injured 
employee,  as  used  in  this  act,  means  his  average  annual  earn- 
ings in  the  employment  in  which  he  was  engaged  at  the  time 
of  his  injury.  This  appears  so  clearly  and  emphatically  that 
it  is  impossible  to  arrive  at  any  other  conclusion  and  preserve 
what  appears  to  have  been  the  legislative  intent  to  exclude 
other  earnings  in  different  or  concurrent  employments,  and 
thus  be  able  to  distribute  the  burden  of  compensation  to  each 
of  the  several  industries  where  in  the  injuries  and  deaths  may 
occur. 

In  making  these  classifications  which  we  have  been  consid- 
ering, the  known  and  recognized  incidents  of  industrial  em- 
ployments were  taken  into  consideration.  The  first  three  re- 
late to  employments  wherein  operations  are  carried  en  for 
substantially  the  entire  year,  and  may  be  said  to  include  the 
large  majority  of  industrial  employments  in  the  State.  That 
there  were  well-known  industrial  employments  within  this 
jurisdiction  which  were  not  so  operated  must  also  have  been 
within  the  knowledge  of  the  legislative  body.  That  such  em- 
ployments were  recognized  and  provided  for  is  apparent  from 
the  terms  and  provisions  of  the  fourth  classification.  If  this 
conclusion  is  not  correct,  we  must  hold  that  the  legislature 
has  omitted  a  large  class  of  employees  from  the  benefits  of 


ANNA  ANDREJWSKI  vs.  WOLVERINE  COAL  CO.  277 

this  statute.  Such  a  construction  will  never  be  given,  where 
another  and  a  reasonable  construction  can  be  adopted. 

Act  No.  10,  under  consideration,  both  by  its  title  and  by  the 
provisions  which  it  contains,  indicates  that  it  was  general 
legislation  intended  to  apply  to  all  employees  and  all  indus- 
trial employments  within  this  State,  and  to  provide  compen- 
sation to  all  such  employees  for  accidental  injuries  or  deaths 
resulting  therefrom.  It  is  apparent,  then,  that  the  legislation 
was  intended  to  make  such  provision,  and  that  section  11  of 
part  2  of  this  act  was  intended  to  apply  to  all  cases  of  acci- 
dental injuries  or  deaths  occurring  in  such  employments. 

In  our  opinion  the  legislature  by  this  statute  did  in  fact 
make  provision  which  applied  to  all  cases  of  such  injuries  and 
deaths  occurring  in  all  employments,  and  that,  in  making  such 
provision,  they  included  the  known  and  recognized  incident 
of  the  employment  of  coal  mining  and  other  employments  that 
such  employments  were  not  carried  on  during  the  entire  year. 
Therefore,  in  determining  the  compensation  to  employees  in- 
jured in  such  employments  and  in  arriving  at  a  fair  and  rea- 
sonable basis  therefor,  the  computation  must  be  made  under 
the  provisions  of  the  fourth  classification  of  this  statute,  and 
the  amount  of  the  average  annual  earnings  of  the  injured  em- 
ployee ascertained  as  near  as  possible. 

To  charge  this  employment  with  compensation  for  injuries 
to  its  employees  on  the  same  basis  as  employments  which  oper- 
ate during  substantially  300  days  in  the  year  would  be  an  ap- 
parent injustice,  as  such  compensation  would  be  based  on  the 
theory  of  impossible  earnings  by  the  employee  in  that  em- 
ployment which  operated  upon  the  average  a  trifle  over  two- 
thirds  of  a  working  year.  This  was  recognized  and  provided 
for  by  the  legislature  by  omitting  from  the  fourth  classifica- 
tion any  requirement  relative  to  the  average  daily  wage  or 
salary  of  an  injured  employee.  This  construction,  in  prin- 
ciple, appears  to  be  supported  by  the  English  cases  involving 
questions  of  like  character.  Kelly  v.  Spinning  Co.,  Ltd.,  43  Ir. 
L.  T.  J.  81 ;  Bailey  v.  Kemwrthy,  98  L.  T.  333,  334 ;  Carter  v. 


278  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

John  Lang  d  Sons,  16  Sc.  L.  T.  345-348 ;  Anslow  v.  Colliery 
Co.,  100  L.  T.  786. 

In  the  record  is  an  exhibit  showing  the  annual  earnings 
paid  by  appellant  to  the  deceased  from  1904  to  1912,  inclusive, 
amounting  to  $5,175.21.  From  this  table  we  find  that  the 
average  annual  earnings  paid  to  him  during  that  period  were 
|575.02,  which  we  will  take  as  a  basis  for  the  computation  of 
the  compensation  to  which  the  claimant  is  entitled.  Having 
determined  his  average  annual  earnings,  there  remains  noth- 
ing further  to  do,  except  to  determine  the  average  weekly 
wages,  by  dividing  this  sum  by  52,  the  result  of  which  is 
$11.06,  as  such  average  weekly  wages.  One-half  of  this 
amount,  being  $5.53,  would  be  the  amount  to  be  paid  weekly 
to  the  claimant  for  a  term  not  exceeding  300  weeks. 

The  conclusion  of  law,  therefore,  of  the  industrial  accident 
board,  in  determining  that  the  average  weekly  wages  of  de- 
ceased should  be  computed  under  the  second  classification  of 
section  11  of  part  2  of  this  act,  was  erroneous.  Its  order  in 
affirming  the  award  made  in  this  cause  by  the  arbitration 
committee  therein  is  therefrom  reversed  and  set  aside;  and 
this  court,  in  cases  under  this  act  brought  to  this  court  for 
review,  being  authorized  by  section  12  of  part  3  of  said  act 
"to  make  such  orders  in  respect  thereto  as  justice  may  re- 
quire," does  order  and  determine  that  said  order  of  the  in- 
dustrial accident  board  be  reversed  and  set  aside,  and  an  or- 
der entered  by  said  board  in  said  cause  in  accordance  with  the 
foregoing  opinion,  but  without  costs. 


LYDA  RAYNER  vs.   SLIGH  FURNITURE  CO.  279 


LYDA  RAYNER, 

Applicant, 
vs. 
SLIGH  FURNITURE  COMPANY, 

Respondent. 

FACTORY  RULES — ACQUIESCENCE  BY  EMPLOYER  IN  'INFRACTION  OF  RULES. 
Applicant's  decedent  was  employed  in  the  factory  of  respondent.  It 
was  customary  for  the  respondent  to  announce  the  noon  hour  by 
blowing  a  whistle.  The  employes  were  required  to  proceed  to 
the  end  of  the  room  in  which  they  worked  and  punch  a  time  clock 
before  leaving  for  dinner.  On  the  day  of  his  injury  decedent 
started  on  a  run  from  his  hench  toward  the  time  clock,  which 
was  located  about  150  feet  away,  and  collided  with  a  fellow  work- 
man, receiving  injuries  which  resulted  in  his  death.  There  was 
a  rule  forbidding  the  men  running  to  punch  the  clock,  but  respon- 
dent's foreman  testified  that  it  was  not  strictly  enforced. 

HELD:  1.  That  the  mere  fact  that  such  a  rule  was  made  is  not 
controlling  when  its  general  violation  is  acquiesced  in  by  the 
employer. 

2.  The  infraction  of  this  rule  by  decedent  was  not  such  in- 
tentional and  wilful  misconduct  as  to  bar  recovery,  in  view  of 
the  fact  that  it  was  the  general  custom  of  decedent's  fellow  em- 
ployes and  was  tactitly  permitted  by  respondent's  foreman. 


Appeal  of  Sligh  Furniture  Company  from  the  decision  of 
an  arbitration  committee,  awarding  compensation  to  Lyda 
Rayner  for  the  death  of  her  husband.  Affirmed. 


Opinion  by  the  Board: 

On  November  5,  1912,  Adelbert  Rayner,  the  applicant's  hus- 
band, was  injured  in  respondent's  factory  in  the  city  of  Grand 
Rapids.  Mr.  Rayner  was  fifty-nine  years  of  age,  was  of  light 
build,  somewhat  active,  and  on  the  day  of  his  injury  was  work- 
ing in  the  cabinet  department  on  the  third  floor  of  respond- 


280  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ent's  factory.  About  100  carvers  and  cabinet  makers  were 
employed  in  that  room,  and  on  the  blowing  of  the  noon  whistle 
each  was  required  to  proceed  to  the  end  of  the  room  and  punch 
the  time  clock  before  leaving  for  dinner.  The  distance  from  the 
bench  where  Mr.  Rayner  was  working  to  the  time  clock  was 
about  150  feet,  and  when  the  noon  whistle  blew  on  the  day  of  the 
injury,  he  started  on  a  run  from  his  bench  towards  the  time 
clock  to  punch  it.  After  proceeding  about  30  feet  towards  the 
clock  he  collided  with  one  Martin  De  Vos,  a  fellow-employe, 
fracturing  or  injuring  one  or  more  of  his  ribs.  Rayner  con- 
tinued to  work  after  the  injury,  evidently  thinking  that  it  was 
not  serious  and  no  doctor  treated  him  for  four  or  five  days. 
No  notice  was  given  the  defendant  of  the  injury  until  after 
Mr.  Rayner's  death,  which  occurred  on  December  26.  It  is 
claimed  on  the  part  of  the  applicant  that  the  injury  to  Mr. 
Rayner's  side  and  ribs  punctured  or  affected  the  pleura  of 
the  lungs  and  that  from  the  inflammation  or  irritation  that 
followed  the  lungs  became  affected,  resulting  in  Mr.  Rayner's 
death,  and  that  the  original  injury  was  the  cause  of  such 
death.  The  respondent  contends  that  Mr.  Rayner's  death  was 
not  the  result  of  the  accident,  that  it  did  not  arise  out  of  and 
in  the  course  of  his  employment,  and  that  he  was  guilty  of  in- 
tentional and  wilful  misconduct. 

The  Board  has  carefully  examined  all  of  the  evidence  and 
has  reached  the  conclusion  that  the  accident  above  referred 
to  was  the  proximate  cause  of  Mr.  Rayner's  death.  It  is  a  re- 
grettable feature  of  the  case  that  notice  of  the  injury  was  not 
seasonably  given  the  respondent  by  Mr.  Rayner,  but  under  the 
circumstances  shown  in  the  evidence  this  failure  to  give  no- 
tice would  not  be  a  bar  to  the  applicant's  claim. 

It  is  clear  that  Mr.  Rayner  was  acting  in  the  course  of  his 
employment  at  the  time  he  received  the  injury.  In  fact  there 
is  no  serious  dispute  on  this  point.  He  was  required  to  pro- 
ceed from  his  workbench  to  the  time  clock,  and  to  punch  the 
time  clock  before  leaving  the  room  in  which  he  was  working. 
This  was  a  duty  imposed  upon  him  by  the  employer  and  he 
was  in  the  act  of  performing  that  duty  at  the  time  he  received 


LYDA  RAYNER  vs.   SLIGH  FURNITURE  CO.  281 

the  injury,  having  proceeded  part  way  from  his  bench  to  the 
clock.  We  are  also  of  the  opinion  that  the  injury  rose  out  of 
his  employment,  within  the  meaning  of  Act  No.  10,  Public 
Acts  of  1912.  The  evidence  fairly  shows  that  it  was  custom- 
ary for  the  men  to  run  for  the  time  clock  when  the  whistle 
blew  and  crowding  and  collisions  resulted  and  were  likely  to 
result  in  going  to  and  punching  the  clock  and  leaving  the 
room  on  such  occasions.  The  evidence  on  this  point  is  more 
fully  referred  to  in  the  following  paragraph  of  this  opinion : 

Did  the  action  of  Mr.  Kayner  in  running  toward  the  time 
clock  amount  to  intentional  and  wilful  misconduct  within  the 
meaning  of  the  compensation  law?  The  evidence  shows  that 
respondent  had  forbidden  such  running  by  rule,  but  it  was 
also  shown  that  such  rule  was  not  enforced.  Frank  Lardie, 
who  was  Mr.  Rayner's  immediate  foreman,  testified  that  he 
had  notified  the  men  several  times  not  to  run  to  the  clock, 
and  that  only  a  part  of  the  men  did  the  running  when  the 
whistle  blew  (R.  35),  acknowledging  that  the  rule  against 
running  is  not  enforced.  Charles  Hicks,  foreman  of  the  carvers 
in  the  room  in  which  Rayner  worked,  testified  that  there  was 
crowding  and  jamming  at  times  in  going  to  the  clock ;  that  the 
rule  not  to  run  to  the  clock  was  made  about  a  year  before 
the  accident,  but  witness  would  not  say  that  the  rule  was  so 
enforced  as  to  stop  the  running  (R.  47).  Martin  De  Vos  tes- 
tified that  people  used  to  run  to  the  clock  most  every  day  and 
that  was  the  case  right  up  to  the  time  Mr.  Rayner  was  hurt 
(R.  47).  and  Mr.  Landegand,  another  foreman  of  respondent, 
testified  that  the  biggest  share  of  the  men  ran  to  the  clock 
each  day.  notwithstanding  the  rule;  "they  insist  on  running. 
I  have  discharged  men  because  they  run,  but  it  did  no  good, 
the  rest  of  them  keep  it  up  just  the  same.  You  cant'  let  them 
all  go.  It  has  been  the  practice  there  to  run." 

The  mere  fact  that  a  rule  was  made  forbidding  running  to 
the  time  clock  is  not  controlling  when  its  general  violation 
is  acquiesced  in  by  the  employer.  The  action  of  Mr.  Rayner 
in  running  to  the  clock  did  not  differ  materially  from  the 
action  of  a  considerable  number  of  other  employes,  and  such 


282  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

conduct  was  acquisced  in  and  tactitly  permitted  by  respond- 
ent's foremen.  It  did  not  amount  to  intentional  and  wilful 
misconduct.  The  decision  of  the  committee  on  arbitration 
is  affirmed. 


SUPREME  COURT. 

LIDA  RAYNER, 

Applicant   and   Appellee, 
vs. 
SLIGH  FURNITURE  COMPANY, 

Respondent  and  Appellant. 

1.  APPEAL  AND  EREOB — CERTIOBABI — INDUSTRIAL  ACCIDENT  BOARD — Cois 

TRIBUTOBY  NEGLIGENCE — PERSONAL   INJUBIES — MASTER  AND   SEBVANT. 

In  reviewing  a  decision  of  the  industrial  accident  board,  awardin 
compensation  for  the  accidental  injury  and  resulting  death  o 
an  employee,  a  finding  that  the  injury  did  not  arise  from  th 
intentional  and  wilful  misconduct  of  the  deceased  will  not  b 
reviewed,  if  there  was  evidence  to  support  it.  Act  No.  10,  Extr 
Session  1912,  §  12,  pt.  3,  (2  How.  Stat.  [2d  Ed.]  §  3980). 

2.  MASTEB  AND  SERVANT — INDUSTBIAL  ACCIDENT  BOARD — COURSE  OF 
PLOYMENT. 

Injuries  resulting  in  the  death  of  an  employee,  in  the  factory  o 
defendant,   from  colliding  with   another  servant  while  the   d( 
cedent  was  running  to   punch  the  time  clock,  a  duty  impose 
by   the  master,   was   an  industrial   accident,   within  the   mean- 
ing of  Act  No.  10,  Extra  Session  1912    (2  How.  Stat.    [2d  Ed.] 
§  3939  et  seq.).    McAlvay,  C.  J.,  dissenting. 

3.  SAME — PROXIMATE  CAUSE. 

If  not  the  proximate  cause  of  decedent's  injuries,  the  performance 
of  such  duty  so  contributed  to  the  accident  as  to  constitute  a  con- 
curring cause. 


Certiorari  to  the  industrial  accident  board  by  the  Sligh 
Furniture  Company  to  review  an  order  awarding  compensa- 
tion to  Lida  Rayner  for  the  accidental  death  of  her  husband, 


LYDA  RAYNER  vs.  SLIGH  FURNITURE  CO.  283 

Adelbert  Eayner.     Submitted  January  8,  1914.  Affirmed  April 
7,  1914. 

Francis  D.  Cam/pan,  (William  A.  Miilhern,  of  counsel),  for 
appellant. 
Norris  McPherson  <&  Harrington,  for  appellee. 

KUHN,  J.  This  case  is  brought  here  by  certiorari  to  the 
industrial  accident  board.  Adelbert  Eayner,  the  applicant's 
husband,  was  injured  while  in  respondent's  factory  in  the  city 
of  Grand  Eapids.  About  100  carvers  and  cabinet  workers  were 
employed  on  the  third  floor  of  the  factory,  and,  on  the  blow- 
ing of  the  noon  whistle,  each  workman  was  required  to  proceed 
to  the  end  of  the  room  and  punch  the  time  clock  before  leav- 
ing for  dinner.  Mr.  Eayner,  who  was  working  on  this  floor, 
about  150  feet  from  the  time  clock,  on  November  5,  1912,  when 
the  whistle  blew  at  noon,  started  on  a  run  from  his  bench  to 
the  clock  to  punch  it.  After  proceeding  about  30  feet,  he  collided 
with  Martin  De  Vos,  a  fellow  employee,  whom  he  could  not 
see  because  of  drawers  which  were  piled  up  on  the  floor.  This 
resulted  in  Eayner  fracturing  or  injuring  one  of  more  of  his 
ribs.  The  injury  to  his  side  and  ribs  affected  the  pleura  of 
his  lungs,  and  from  the  inflammation  or  irritation  which  fol- 
lowed the  lungs  became  affected,  resulting  in  Mr.  Eayner's 
death. 

There  had  been  no  general  notice  printed  or  posted  of  a  rule 
against  running  to  the  time  clock,  but,  about  a  year  previous 
to  the  accident,  Eayner  had  been  told  by  his  foreman,  Hicks, 
not  to  run  to  the  clock.  There  was  testimony  that  the  rule 
against  running  had  not  been  enforced,  and  no  employee  had 
been  discharged  because  of  doing  so.  An  award  to  claimant, 
who  was  left  as  his  dependent,  was  made  by  a  committee  on 
arbitration,  and  upon  review  was  affirmed  by  the  industrial  ac- 
cident board. 

It  is  the  contention  of  the  respondent  and  appellant  that 
the  facts  indicate  that  the  accident  and  the  resulting  injury 
arose  out  of  an  act  independent  of  the  employment,  in  direct 


284  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

violation  of  a  rule  of  the  company,  and  solely  for  his  own 
pleasure  or  convenience.  With  reference  to  the  rule,  the  com- 
mission made  a  finding  that  such  a  rule  had  not  been  enforced 
and  its  general  violation  had  been  acquiesced  in  by  the  em- 
ployer. There  being  evidence  to  support  this  finding  of  fact, 
by  the  terms  of  the  act  (part  3  §12,  Act  No.  10,  Public  Act* 
Extra  Session  1912)  (2  How.  Stat.  [2d  Ed.]  §  3939  et  seq.)  i1 
becomes  conclusive,  and  as  a  result  eliminates  the  considera- 
tion of  the  question  as  to  whether  the  injury  arose  by  reasoi 
of  the  intentional  and  wilful  misconduct  of  Rayner.  Rumboll 
v.  Colliery  Co.,  80  L.  T.  42,  1  W.  C.  C.  28. 

At  the  time  of  the  accident,  Kayner  was  in  the  performan< 
of  a  duty  imposed  upon  him  by  his  employer.  When  the  nooi 
whistle  blew,  it  was  obligatory  upon  him,  before  leaving  th< 
place  of  his  employment,  to  punch  the  time  clock.  The  pei 
formance  of  this  duty,  if  not  the  proximate  cause,  was  a  con- 
curring cause  of  his  injury.  In  Fitzgerald  \.  Clarke  &  801 
(1908)  99  L.  T.  101,  1.  B.  W.  C.  C.  197,  Buckley,  L.  J.,  state< 
the  rule  as  follows: 

"The  words  'out  of  and  in  the  course  of  the  employment'  are  us 
conjunctively,  not  disjunctively;  and  upon  ordinary  principles  ol 
construction  are  not  to  be  read  as  meaning  'out  of/  that  ?s  to  say,  'in 
the  course  of.'  The  former  words  must  mean  something  different 
from  the  latter  words.  The  workman  must  satisfy  both  the  one  an( 
the  other.  The  words  'out  of  point,  I  think  to  the  origin  or  cause  oi 
the  accident;  the  words  'in  the  course  of  to  the  time,  place  and  ci] 
cumstances  under  which  the  accident  takes  place.  The  former  words 
are  descriptive  of  the  character  or  quality  of  the  accident.  The  lattei 
words  relate  to  the  circumstances  under  which  an  accident  of  that 
character  or  quality  takes  place.  The  character  or  quality  of  the  acci- 
dent as  conveyed  by  the  words  'out  of  involves,  I  think,  the  idea  that 
the  accident  is  in  some  sense  due  to  the  employment." 

We  are  well  satisfied  that  the  accident  was  an  industrial 
accident  within  the  meaning  of  the  compensation   act,   and 
arose  "out  of  and  in  the  course  of  his  employment."     Whitt 
Jiead  v.  Reader,  2  K.  B.  48  (1901). 

The  judgment  and  decision  of  the  industrial  accident  b< 
is  affirmed,  with  costs  against  appellant. 


ESTATE  OF  P.  D.  BECKWITH  vs.  ALDEN  SPOONER.         285 

BROOKE,  STONE,  OSTRANDER,  BIRD,  MOORE,  and  STEERE,  JJ., 
concurred  with  KUHN,  J. 

MCALVAY,  C.  J.  I  do  not  think  that  this  was  an  industrial 
accident  within  the  statute. 


SUPREME  COURT. 

ESTATE  OF  P.  D.  BECKWITH 

and 
FIDELITY  &  CASUALTY  COMPANY, 

Applicants  and  Appellants, 
vs. 
ALDEN  SPOONER, 

Respondent  and  Appellee. 

1.  WORKMEN'S  COMPENSATION — PETITION  TO  TERMINATE  PAYMENTS — RES 
JUDICATA. 

On  the  hearing  of  an  employer's  petition  to  the  Industrial  Acci- 
dent Board  to  terminate  compensation  awarded  to  an  injured 
servant  by  the  contract  of  employer  approved  by  the  accident 
board,  the  essential  elements  leading  up  to  the  award  are  to  be 
taken  as  concluded  and  are  not  open  to  review.  The  physical 
condition  of  the  injured  employee  is  the  subject  of  inquiry  and 
is  legally  open  to  adjudication.  Act  No.  10,  Extra  Session  1912 
(2  How.  Stat.  [2d  Ed.]  §  3939  et  seq.). 

2.  SAME — CONTRACTS — RES  JUDICATA. 

An  employer's  agreement  filed  with  and  approved  by  the  accident 
board,  granting  compensation  to  a  servant  for  injuries  sustained 
in  the  course  of  his  employment,  is  a  substitute  for,  and  under 
the  statute  is  the  legal  equivalent  of,  a  final  award  of  the  Board, 
and  has  equal  force  and  standing,  when,  to  enforce  recovery,  it 
becomes  necessary  to  put  them  in  judgment  in  the  circuit  court. 


286  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

3      APPEAL  AND  ERROR — CERTIORARI — WORKMEXS  COMPENSATION. 

Upon   review  of  the   findings  and   determination  of   the   Industrial 

Accident  Board  by  writ  of  certiorari,  the  findings  of  fact  are  to 

be  taken   as  final  and  conclusive  if  there  is  evidence  to  support 

them,  in  the  absence  of  fraud. 

4.  SAME — INDUSTRIAL  ACCIDENT  BOARD — REVIEW. 

Where  an  employee  received  compensation  from  his  employer  by  a 
written  agreement  approved  by  the  accident  board,  after  a  full 
opportunity  to  investigate  the  facts,  and  no  fraud  was  alleged, 
the  agreement  was  conclusive  as  to  a  subsequent  claim  of  the 
employer  that  the  loss  of  the  eye,  afterward,  by  a  cataract,  was 
not  produced  by  the  injury,  which  the  medical  testimony  tended 

.  to  show  might  have  resulted  from  the  injury,  the  employer  claim- 
ing that  the  cataract  resulted  from  a  cataract  on  the  ether  eye 
that  had  been  removed  by  an  operation,  or  was  caused  by  senility, 
and  that  the  injury  did  not  cause  the  loss  of  sight. 

5.  SAME. 

Where  different  inferences  may  be  drawn  from  the  testimony  be- 
fore the  Industrial  Accident  Board,  and  inferences  which  are  favor- 
able to  their  finding  that  a  petition  to  terminate  compensation 
should  not  be  granted  are  deducible  from  the  record,  the  court 
on  certiorari  will  not  disturb  the  result. 


Certiorari  to  the  Industrial  Accident  Board;  submitted  No- 
vember 13,  1913.  Decided  December  18,  1914. 

The  estate  of  P.  D.  Beckwith,  a  corporation,  and  Fidelity  & 
Casualty  Company  of  New  York  petitioned  the  Industrial  Ac- 
cident Board  for  an  order  terminating  the  right  to  compensa- 
tion of  Alden  Spooner,  under  an  agreement  with  the  peti- 
tioner, and  from  an  order  denying  the  petition  they  appeal. 
Affirmed. 

Charles  H.  Ruttle,  for  appellants. 
Persons,  Shields  d  Silsbee,  for  appellee. 

STEERE,  J.  Plaintiff,  ancT  appellants  herein  seek,  by 
certiorari  review  and  reversal  of  certain  "Proceedings  and  De- 
cisions and  Awards,"  had  and  made  before  and  by  the  Indus- 
trial Accident  Board  of  this  state,  which  culminated  in  the 
following  final  order: 


ESTATE  OF  P.  D.  BECKWITH  vs.  ALDEN  SPOONER.         287 

Alden  Spooner, 

Claimant, 
v. 

"Estate  of  P.  D.  Beckwith  and 
Fidelity  &  Casualty  Company  of  New  York, 
Respondents. 

"This  matter  having  come  on  to  be  heard  upon  the  petition  of  the 
respondent  filed  herein,  praying  for  relief  and  to  stop  compensation 
for  reasons  set  forth  in  said  petition,  and,  after  full  examination  of 
the  proofs,  upon  said  petition,  and  hearing  argument  thereon,  and 
due  consideration  thereon  having  been  had,  and  it  appearing  to  the 
Board  that  the  facts  alleged  in  said  petition  as  reason  for  stopping 
compensation  are  not  sustained  by  the  proofs,  it  is  ordered  and  ad- 
judged that  the  said  petition  be,  and  the  same  is  hereby  dismissed." 

It  appears,  undisputed,  that  said  Alden  Spooner  was  reg- 
ularly employed  as  a  molder  by  the  above  corporation,  known 
as  the  "Estate  of  P.  D.  Beckwith,"  of  Dowagiac,  Mich.,  which, 
as  an  employer  of  labor,  had,  with  approval  of  the  Industrial 
Accident  Board,  elected  to  come  under  the  provisions  of  Act 
No.  10,  Public  Acts  of  1912,  extra  sesion,  (2  How.  Stat.  [2d 
Ed.]  §  3939,  et  seq.)  While  regularly  engaged  in  its  employ- 
ment as  a  molder  Spooner  suffered  an  accident  resulting  in  an 
injury  to  his  right  eye,  described  by  his  employer,  in  its  re- 
port made  under  the  requirements  of  section  16,  part  3,  of 
said  act,  as  follows: 

"Molten  iron  splashed  into  right  eye,  right  eye  burned." 

Section  5  of  part  3  of  said  act  provides: 

"If  the  employer,  or  the  insurance  company  carrying  such  risk,  or 
Commissioner  of  Insurance,  as  the  case  may  be,  and  the  injured  em- 
ploye reach  an  agreement  in  regard  to  compensation  under  this  act, 
a  memorandum  of  such  agreement  shall  be  filed  with  the  Industrial 
Accident  Board,  and,  if  approved  by  it,  shall  be  deemed  final  and 
binding  upon  the  parties  thereto.  Such  agreement  shall  be  approved 
by  said  Board  only  when  the  terms  conform  to  the  provisions  of  this 
act." 

Pursuant  to  the  provisions  of  this  section  the  following  was 
filed  with  the  Industrial  Accident  Board,  on  November  14, 
1913: 


288  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


"AGREEMENT  IN   REGARD   TO   COMPENSATION. 

"We,  Al  Spooner,  residing  at  city  or  town  of  Dowagiac,  Mich.,  am 
Fidelity  &  Casualty  Co.,  of  N.  Y.,  have  reached  an  agreeement  in  n 
gard  to  compensation  for  the  injury  sustained  by  said  employe  whil« 
in  the  employ  of  Estate  of  P.  D.  Beckwith,  Inc.,  Dowagiac. 

"The  time,  including  hour  and  date  of  accident,  the  place  where  il 
occurred,  the  nature  and  cause  of  injury  and  other  cause  or  groun< 
of  claim,  are  as  follows: 

"Mr.   Spooner  was  injured  Oct.  22,  1913,  about  4:30  p.   m.     Moltei 
iron  splashed  into  right  eye,  causing  bad  burn  in  corner  of  eye. 
"The  terms   of   the  agreement   follow:    $17.60   wages   earned;    $! 
compensation  agreed  upon. 

"Al  Spooner, 

"Fidelity  &  Casualty  Co.,  of  N.  Y., 

"By  Leo  A.   Donahoe. 
"Witness:  Wm.  Hurst. 

"E.  A.  Miecham. 
"Dated  at  Dowagiac,  Mich.,  this  12th  day  of  November,  1913." 

This  agreement  was  approved  by  the  Industrial  Accidenl 
Board   on   November   14,   1913,   and   thereafter   compensatioi 
was  paid  accordingly  from  October  22,  1913,  to  January  14, 
1914. 

On  January  21,  1914,  appellants  filed  with  the  Industrial 
Accident  Board  a  petition  asking  to  be  relieved  from  furthei 
payments,  based  upon  the  following  letter  or  report,  ad- 
dressed to  Dr.  Jones,  the  local  physician  who  attended  Spooner 
professionally  at  the  time  of  his  injury,  and  who  had  referred 
him  to  Dr.  Bonine,  an  eye  specialist: 

"January  15,  1914. 
"Dr.  J.  H.  Jones, 
"Dowagiac,  Mich. 

"Dear  Sir:     I  have  had  Mr.  Spooner  under  my  careful  scrutiny  and 
find  the  following  condition:    Some  years  ago  I  operated  for  catara< 
on  one  eye  and  obtained  good  results — above  the  average.     The  othei 
eye  shows  signs  of  the  same  trouble  at  this  time.     That,  however, 
not  strange   as  it  is  the   rule  with  senile  cataracts  if  they  come  01 
one  eye  they  are  quite  certain  to  grow  on  the  other,  as  you  know. 

"Therefore  there  is  nothing  unexpected  about  the  remaining  lem 
filling  in,  so  can't  see  where  any  one  could  be  held  responsible  foi 


ESTATE  OF  P.  D.  BECKWITH  vs.  ALDEN  SPOONER.          289 

present  conditions,  as  no  other  pathological  condition  of  the  orbit  is 
in  evidence. 

(Signed)     F.  N.  Bonine,  M.  D." 

Upon  the  hearing  of  said  petition  depositions  of  Drs.  Jones 
.and  Bonine  were  introduced  in  evidence.  The  board  there- 
after made  the  following: 

"FINDINGS  OF  FACT. 

"(1.)  The  respondent,  Alden  Spooner,  was  employed  in  the  plant 
of  the  Estate  of  P.  D.  Beckwith,  Inc.,  as  a  molder,  and  had  worked 
there  for  several  years  in  that  capacity.  He  was  65  years  old  and 
at  the  time  of  the  injury  was  receiving  wages  of  $17.60  per  week. 

"(2.)  That  on  October  22,  1913,  respondent  while  attending  to  his 
duties  as  a  molder,  received  an  injury  to  his  right  eye  by  having  hot 
sand  and  other  substances  splashed  into  the  same,  producing  an  in- 
flammation necessitating  immediate  medical  attention  and  causing 
disability  to  do  work. 

"(3.)  That  in  1905  respondent  had  a  cataract  removed  from  his 
left  eye  by  Dr.  F.  N.  Bonine  and  that  such  operation  was  successful 
and  the  result  thereof  above  the  average. 

"(4.)  That  respondent's  right  eye,  being  the  one  injured  in  Octo- 
ber, 1913,  has  now  developed  a  cataract,  which  is  so  far  advanced  that 
he  can  discern  light  but  has  practically  no  vision.  His  left  eye,  oper- 
ated on  in  1905,  is  of  little  use,  and  he  is  in  a  condition  of  total 
disability  on  account  of  the  condition  of  his  said  eyes. 

"(5)  That  the  claim  of  petitioners,  that  the  present  condition  of 
respondent's  right  eye  is  due  not  to  the  injury  thereof  on  October 
22,  1913,  but  that  such  condition  is  due  to  senile  cataract,  is  not 
.sustained  by  the  evidence. 

"(6.)  That  the  present  condition  of  respondent's  right  eye  and  his 
resulting  disability  is  due  to  the  injury  received  by  him  October 
22,  1913. 

"(7.)  That  all  of  the  proposed  findings  of  fact  of  petitioners,  not 
included  in  these  findings  are  refused." 

Against  the  action  of  the  Industrial  Accident  Board  in  this 
matter,  appellants  urge  two  major  grounds  of  reversal:  First 
that  the  controlling  findings  of  fact  are  unwarranted  and  un- 
supported by  evidence;  and  second,  "insufficiency  of  proceed- 
ings." In  explanation  of  the  latter  it  is  stated  that  not  the 
legality,  but  the  sufficiency,  of  the  proceedings  is  questioned, 
37 


290  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

in  the  particular  that,  although  appellants  in  support  of  theii 
petition  produced  proof  which  established — 

"Spooner  was  suffering  with  a  senile  cataract,  and  that  his  dis- 
ability was  not  a  result  of  his  injury  of  October  22,  1913,  yet  the 
Industrial  Accident  Board  refused  to  accept  the  unchallenged  testi- 
mony of  the  physicians  and  without  any  further  evidence  whatsoever,, 
as  to  Spooner's  precise  condition,  with  respect  to  his  eyes,  er-tered  an 
order  denying  appellants'  petition,  which  order  is  so  vague,  uncertain 
and  indefinite  that  it  may  work  irreparable  damage  to  appellants. 
*  *  * "  and  "that  appellee  has  never  produced  any  proof  that  he 
sustained  an  injury  while  in  the  employ  of  the  Estate  of  P.  D.  Beck- 
with,  Inc.;  that  there  is  no  evidence  that  his  disability  or  impair- 
ment of  eyesight  were  a  result  of  his  accident  of  October  22,  1913,  as 
well  as  that  it  did  not  exist  for  some  time  prior  to  the  date  mentioned; 
that  at  no  time  has  any  admissible  evidence  been  offered  relative  to 
his  present  condition,  whether  the  sight  of  the  left  eye  operated  on 
in  1905  is  good,  or  in  any  degree  impaired,  and  if  impaired  to  what 
extent,  nor  is  there  any  testimony  as  to  the  exact  condition  of  the 
right  eye,  in  which  grains  of  sand  lodged  on  October  22,  1913,  and 
whether  the  sight  in  that  eye  is  impaired,  permanently  or  partially,  or 
to  what  degree." 

In  the  latter  particular  appellants  disregard  the  signifi- 
cance of  the  report  and  agreement  as  to  compensation  filed  by 
them,  which  eliminate  the  various  statutory  steps  of  arbitra- 
tion now  urged  as  imperative.  The  agreement,  filed  with  and 
approved  by  the  board,  is  a  substitute  for,  and,  under  the 
statute,  the  legal  equivalent  of,  an  arbitral  award.  They  have 
equal  force  and  like  standing  when,  to  enforce  recovery  it  be- 
comes necessary  to  put  them  in  judgment  in  the  Circuit  court 
for  the  county  where  the  accident  occurred  (section  13,  part 
3  of  said  act).  The  power  of  the  board  to  act  upon  a  peti- 
tion such  as  appellants  presented  in  this  case  is  found  in  the- 
following  section  (14),  which  authorizes  it  to  review  any 
weekly  payment  at  the  request  of  the  employer,  insurance 
company  carrying  the  risk,  commissiner  of  insurance,  or  em- 
ploye, "and  on  such  review  it  may  be  ended,  diminished  or  in- 
creased, subject  to  the  maximum  and  minimum  amounts -above 
provided,  if  the  board  finds  that  the  facts  warrant  such  ac- 
tion." 


ESTATE  OF  P.  D.  BECKWITH  vs.  ALDEN  SPOONER.         291 

On  the  hearing  of  such  a  petition  for  review  it  can  be  stated 
as  a  general  rule  that  the  essentials  leading  up  to  the  award, 
or  its  equivalent,  are  to  be  taken  as  res  a-djudicata,  except  the 
physical  condition  of  the  injured  employe,  which  naturally 
and  legally  remains  open  to  inquiry.  Mead  vs.  Lockhart,  2  B. 
W.  C.  C.  398. 

We  discover  no  claim  in  this  record  that  appellants  were 
induced  to  enter  into  the  agreement  regarding  compensation 
by  fraudulent  misrepresentations  of  the  other  party.  It  is 
established  beyond  question  by  their  own  representations  that 
Spooner  was  injured  on  October  22,  1913,  while  working  as  a 
m older  for  the  Estate  of  Beckwith  by  '"molten  iron  splashed 
into  right  eye;  right  eye  burned;"  that  he  was  treated  by  Dr. 
Jones,  one  of  their  witnesses,  on  October  23d,  27th,  30th  and 
31st.  Dr.  Jones,  a  physician  in  general  practice,  testified  that 
he  found  small,  black  particles  of  foreign  substance  in  the 
right  eye  and  inflammation  in  the  conjunctiva,  but  neither  it 
nor  the  cornea  were  abrased  or  penetrated;  that  the  inflam- 
mation was  slow  in  disappearing  and  continued  over  several 
weeks — four  or  five  weeks  before  it  disappeared — that  lie 
thought  it  a  case  which  needed  the  service  of  a  specialist,  and 
referred  the  patient  to  Dr.  Bonine.  The  only  reference  in  Dr. 
Jones'  testimony  to  a  cataract  is  found  in  this  answer  to  a 
question  on  cross-examination,  whether  he  thought  the  injury 
he  treated  would  cause,  or  help  cause  a  cataract. 

"A.  Well,  upon  technical  points,  the  substance  of  special  matters 
bearing  upon  the  interior  conditions  of  the  eye,  I  don't  make  a  spe- 
cial work  of  it.  I  would  state,  however,  severe  injuries  to  the  eye  do 
cause  cataracts.  I  do  not  make  a  practice  of  treating  conditions  that 
involve  the  interior  of  the  eye,  but  I  refer  them  to  a  specialist." 

We  see  no  force  in  the  contention  that  at  the  time  of  settle- 
ment Spooner  was  not  suffering  from  an  injury  which  arose 
out  of  and  in  the  course  of  his  employment.  The  manner  of 
the  accident  and  condition  of  the  eye  were  then  open  to  ap- 
pellants' investigation,  and  unquestioned.  After  ample  time 
and  opportunity  to  learn  fully  of  the  accident  and  history  of 


292 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


the  case  from  the  physician  in  charge,  the  injured  employe  and 
all  other  sources,  the  agreement  was  made  on  November  12 
following.  We  find  no  testimony  tending  in  any  manner  to 
show  that  prior  to  the  accident  there  was  any  cataract  or  im- 
pairment of  vision  in,  or  trouble  with,  this  right  eye.  There- 
after its  vision  was  inpaired,  and  a  state  of  inflammation, 
slow  in  healing,  led  the  local  physicians  to  refer  the  patient 
to  a  specialist,  who,  on  December  20,  1913,  discovered  an  im- 
mature, developing  cataract,  the  existence  of  which  was  un- 
disputed at  the  time  of  hearing. 

Dr.  Bonine  testified  that  when  he  examined  the  injured  eye, 
on  December  20,  1913,  "there  was  irritation  of  the  eye  that 
could  be  attributed  to  an  inflammatory  state  of  traumatism 
producing  it,  or  hardness  of  the  eye  ball  would  cause  a  large- 
ness of  the  vessels  of  the  eye,  would  give  it  that  appearance;" 
that  he  found  a  pretty  well-advanced  cataract  on  that  eye,  but 
could  not  tell  how  long  it  had  been  forming,  because  he  had 
not  seen  Spooner,  except  casually,  since  he  operated  on  his 
left  eye  for  a  cataract  eight  years  previous,  in  1905.  In  ex- 
plaining the  nature  of  cataracts,  witness  stated  that  there 
were  three  distinct  ways  in  which  they  are  formed,  the  sim- 
plest being  a  traumatic  cataract,  caused  from  an  injury,  the 
second  a  senile  cataract,  caused  by  an  interference  with  the 
nourishment  of  the  lens  through  diseases  of  the  inner  tissues, 
and  the  third  hereditary  or  resulting  from  hereditary  tend- 
ency; that  a  traumatic  cataract  would  usually  come  in  from 
one  to  three  or  four  weeks  after  an  injury,  or  sometimes  in- 
stantly if  the  lens  was  pierced  so  that  the  aqueous  humor 
came  in  contact  with  it;  asked  if  this  was  a  traumatic  or  sen- 
ile cataract  he  answered: 

"A  senile.  *  *  *  It  is  the  rule  that  when  a  cataract  comes  on  one 
eye  the  tendency  is  to  form  on  the  other;  not  necessarily,  but  it  is 
the  rule,  and  not  concurrent.  *  *  * 

"Q.  Could  you  determine,  in  saying,  whether  this  was  a  senile  or 
traumatic  cataract? 

"A.  The  stage  of  inflammation  had  gone  on  until  it  would  be  a 
difficult  matter  to  do  that.  The  only  indication  had  was  irritation  or 
flushed  eyeball  and  that  I  spoke  of  at  first;  that  was  traumatism. 


ESTATE  OF  P.  D.  BECKWITH  vs.  ALDEN  SPOONER.         293 

"Q.  Has  the  cataract  grown  since  you  first  saw  Mr.  Spooner  in 
December? 

"A.     From  the  first  to  the  last  the  vision  has  decreased  decidedly. 

*    *    * 

"Q.  If  this  was  a  traumatic  cataract,  would  it  have  been  probably 
fully  developed  by  December  20th,  in.  8  weeks? 

"A.  Depending  upon  the  severity  of  the  injury.  If  the  injury  was 
slight,  it  would  develop  slowly." 

Being  asked  on  cross-examination, 

"In  your  opinion,  doctor,  is  there  any  connection  between  the  catar- 
act on  the  left  eye  and  on  the  right?" 

He  answered: 

"The  only  connection  established  would  be  the  rule  of  the  forma- 
tion of  cataracts,  as  over  80  per  cent  of  cataracts  that  form  first  in 
one  eye  would  later  form  on  the  other,  20  per  cent  of  one  eye  will 
be  cataracts,  and  the  other  eye  not  at  all,  so  that  is  the  only  rela- 
tion one  eye  could  have  to  the  other." 

The  doctor  nowhere  testifies  that  the  cataract  removed  by 
him  from  the  left  eye  over  eight  years  before  was  senile,  but 
such  possibly  may  be  inferred  from  his  testimony,  especially 
when  considered  in  connection  with  his  letter  to  Dr.  Jones. 

Section  12,  part  3  of  said  Act  No.  10,  under  which  these 
proceedings  are  had,  empowers  this  court  to  review  only  ques- 
tions of  law;  all  questions  of  fact  determined  by  the  Board 
from  competent  evidence  being  conclusive,  in  the  absence  of 
fraud.  It  must  be  conceded,  as  urged  by  appellants,  that  the 
record  discloses  no  testimony,  competent  or  otherwise,  to  sus- 
tain the  finding: 

"His  left  eye,  operated  on  in  1905,  is  of  little  use,  and  he  is  in  a 
condition  of  total  disability  on  account  of  the  condition  of  his  said 

eyes." 

This  finding,  however,  tends  only  to  confuse,  and  must  be 
eliminated  from  consideration,  not  only  because  it  has  no 
evidential  support  in  the  case,  but  no  claim  was  ever  made 
for  injury  to  the  left  eye,  and  its  condition  is  not  in  issue. 
With  it  eliminated  there  is  sustaining  evidence  for  the  re- 


294  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

maining  findings  of  fact  essential  to  support  the  order  sought 
to  be  reversed. 

The  controlling  issue  raised  before  the  Board  by  appellant's 
petition  for  review  was  whether  they  had  by  their  evidence 
conclusively  established  that  the  cataract  which  appeared  in 
claimant's  right  eye  after  the  injury  was  senile,  and  therefore 
not  connected  with,  or  attributable  to,  such  injury.  To  sus- 
tain appellant's  contention  here  this  court  must,  therefore  be 
able  to  say,  from  the  whole  record,  as  a  conclusion  of  law, 
that  the  Industrial  Accident  Board  must  find,  not  could 
find,  as  a  conclusion  of  fact,  that  the  cataract  in  the  injured 
right  eye  is  senile  and  not  traumatic,  and  that  Spooner  was 
not,  at  the  time  of  hearing  said  petition,  under  any  incapacity 
attributable  to  the  accident,  and  resulting  injury  to  that  eye, 
on  October  22,  1913. 

We  conclude  that  upon  such  issue  different  inferences  of 
fact  could  legitimately  be  drawn  from  what  the  record  dis 
closes  and,  in  such  case,  where  the  Board  does  not  find  "that 
the  facts  warrant  such  action"  as  may  be  requested  under  sec- 
tion 14,  part  3,  of  the  act  creating  said  Board,  the  court  can- 
not disturb  its  findings  and  orders  thereon,  made  while  act- 
ing within  the  authority  there  conferred. 

The  order  complained  of  is  therefore  affirmed. 


McCOY  vs.  MICHIGAN  SCREW  CO.  295 


SUPREME  COURT. 

WILLIAM  McCOY, 

Applicant  and  Appellee, 
vs. 
MICHIGAN  SCREW  COMPANY, 

Respondent  and  Appellant. 

1.  MASTER  AND  SERVANT — INDUSTRIAL  ACCIDENT  BOABD — PERSONAL  IN- 
JURIES— PROXIMATE  CAUSE. 

Where  an  employee's  eye  received  an  injury  from  pieces  of  steel 
flying  from  a  lathe  that  he  was  operating  and  the  eye  became 
infected  with  gonorrhea  with  which  the  employee  was  afflicted, 
the  loss  of  his  eye,  resulting  from  the  disease,- did  not  arise  out 
of  and  in  the  course  of  his  employment  under  the  workmen's 
compensation  law,  Act  No.  10,  Special  Session  1912  (2  How. 
Stat.  [2d  Ed.]  §3939  et  seq.). 

2.  SAME — EVIDENCE — BURDEN  OF  PROOF. 

The  burden  of  furnishing  evidence  from  which  the  inference  can 
be  legitimately  drawn  that  the  injury  arose  out  of  and  in  the 
course  of  his  employment  rests  upon  the  claimant. 


Certiorari  by  the  Michigan  Screw  Company  to  review  an 
award  of  the  industrial  accident  board  to  William  McCoy, 
claimant.  Submitted  January  23,  1914.  Reversed  June  1,  1914. 

Stevens  T.  Mason,  for  appellant. 
Edmund  C.  SMelds,  for  appellee. 

KUHN,  J.  The  claimant,  William  McCoy,  was  employed 
by  the  contestant  and  appellant  as  an  operator  on  a  lathe  ma- 
chine. On  February  1,  1913,  several  small  pieces  of  steel  from 
the  machine  on  which  he  was  working  lodged  in  his  eye.  This, 
it  is  claimed,  caused  an  irritation  and  caused  him  to  rub  his 
eye.  At  the  time,  claimant  was  being  treated  by  Dr.  ,A.  M. 
Campbell  for  gonorrhea.  On  February  7th  he  went  to  Dr. 
Oochrane,  who  removed  four  pieces  of  steel  from  the  eye.  The 


296  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

next  day  the  doctor  removed  another  piece  of  steel  and  dis- 
covered that  the  eye  had  become  infected  with  gonorrhea.  He 
was  then  sent  to  a  hospital  and  subsequently  lost  the  sight  of 
the  eye.  The  industrial  accident  board  affirmed  an  award 
made  claimant  by  an  arbitration  committee  of  |6.49  per  week 
for  100  weeks. 

It  is  the  claim  of  contestant  and  appellant  that  the  loss  of 
the  eye  was  not  the  result  of  a  personal  injury  arising  out  of 
and  in  the  course  of  claimant's  employment,  but  was  the  di- 
rect result  of  a  disease  unconnected  in  any  way  with  his  em- 
ployment. At  the  hearing  before  the  industrial  accident 
board,  four  physicians  were  sworn,  who  testified  as  to  the 
effect  upon  the  eye  of  gonorrheal  infection. 

Claimant  contends  that  the  germs  would  not  have  entered 
the  eye  had  not  the  steel  caused  "(a)  an  inclination  to  rub — 
the  inciting  cause — (b)  inflamed  condition  which  made  the 
eye  susceptible  to  the  entry  of  the  germs,  as  in  the  case  of 
blood  poison  and  erysipelas." 

A  careful  reading  of  the  testimony  of  the  physicians  shows 
that  the  infection  can  easily  be  caused  to  a  normal  eye  by  rub- 
bing the  eye  with  a  hand  infected  with  the  gonorrheal  germ. 
Dr.  Bret  Nottingham  testified: 

"Mr.  Mason:  And  will  you  say  as  an  expert  how  gonorrhea  can  be 
communicated  to  the  eye?  Is  it  by  germ  or  otherwise? 

"A.  Yes;  it  is  a  contagious  disease  of  course,  produced  by  this 
germ,  and  a  person,  in  caring  for  themselves  as  they  have  to,  get 
some  of  this  pus  on  their  finger  containing  the  germs,  and  of  course, 
the  eye  being  irritable,  would  rub  the  eye  with  the  finger  contain- 
ing this  pus. 

"Mr.  Mason:  No  doubt  that  infection  of  the  eye  was  caused  by  the 
entering  of  gonorrhea  germs.  Could  that  infection  occur  if  there  was 
no  injury  in  the  eye? 

"A.     Yes. 

"Mr.  Mason:  Therefore,  if  a  perfectly  normal  eye  will  be  rubbed 
by  a  hand  infected  with  the  germ,  it  will  infect  the  eye. 

"A.  It  might  be  very  easily  infected;  a  normal  eye  can  be  infected 
in  this  same  manner. 

"Mr.  Mason:     Suppose  this  boy  had  not  had  an  injury  to  his  eye. 


McCOY  vs.  MICHIGAN  SCREW  CO.  297 

and  had  rubbed  his  eye;   would  it  be  possible  that  he  could  have  lost 
his  eye? 

"A.     Yes;   the  same  result  might  have  been  obtained." 

Dr.  Cushman  testified : 

"Gonorrhea  is  one  of  the  most  common  conditions  that  there  is 
perhaps,  and  it  is  an  admitted  fact,  without  any  argument  upon  what 
we  are  supposed  to  know,  that  the  gonorrhea  germ  will  attack  and 
penetrate  the  unaffected  covering  of  the  eye.  I  have  heard  it  said  on 
reasonably  good  authority  that  it  is  perhaps  the  only  germ  that  will 
attack  an  uninjured  eye;  but  the  fact  of  there  having  been  this  injury 
to  the  eye  from  the  steel,  without  any  question  in  my  mind,  has 
lowered  the  resistance  of  the  eye,  that  is,  weakened  it,  and  made  it 
less  resistant  to  the  infection.  With  the  inflammation,  it  was  much 
more  probable  that  the  eye  become  affected.  Now,  if  the  infection  of 
gonorrhea  was  easier  transmitted  to  the  eye,  there  would  be  probably 
about  50  per  cent  of  us  running  around  blind.  That  is,  gonorrhea  is 
common,  and  you  don't  see  many  blind.  I  have  heard  that  90  per 
<jent  of  the  men  in  a  certain  town  either  have  or  have  had  gonorrhea 
and  90  per  cent  of  the  men  haven't  got  bad  eyes,  and  probably  have 
been  careless  about  their  fingers.  The  presence  of  an  injury  to  the 
eye  makes  it  far  more  probable  that  the  eye  will  become  diseased." 

Dr.  Cochrane  testified: 

"Mr.  Mason:  Dr.  Cochrane,  did  you  examine  this  William  McCoy; 
on  what  date? 

"A.     February  7th. 

"Mr.  Mason:     He  came  to  you  for  what  trouble? 

"A.     He  complained  of  steel  in  his  eye. 

"Mr.  Mason:     Did  you  take  the  foreign  bodies? 

"A.     Yes. 

"Mr.  Mason:     Where  were  they  in  the  eye? 

"A.     On  the  upper  lid  on  the  under  side. 

"Mr.  Mason:  Were  they  in  a  place  where  they  would  have  been 
apt  to  give  very  serious  injury  to  the  eye? 

"A.     Not  serious  injury;  they  would  produce  irritation. 

"Mr.  Mason:  Does  the  present  loss  of  the  eye  result  from  these 
cinders  having  be'en  in  or  from  another  cause? 

"A.     The  direct  cause  is  from  the  gonorrhea  infection. 

"Mr.  Mason:  Therefore  the  loss  of  the  eye  is  the  direct  result  of 
disease,  and  not  of  accident. 

"A.     The  immediate  cause  is  the  disease. 

"Mr.  Mason:  In  other  words,  what  we  call  the  resulting  cause  is 
the  disease. 


298  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"A.     The  immediate  or  direct  cause. 

"Mr.  Mason:     How  did  that  gonorrhea  get  into  his  eye? 

"A.     Probably  from  rubbing  with  his  fingers. 

"Mr.  Mason:     He  had  gonnorrhea  before  that? 

"A.     I  understand  so. 

"Mr.  Mason:     At  the  time  you  examined  him  did  he  have  gonorrhea? 

"A.     I  understand  so. 

Mr.  Reaves:  You  say,  Doctor,  that  that  was  the  approximate  cause 
of  the  loss  of  his  eye — the  immediate  cause — what  would  you  say  if 
he  had  not  have  had  the  steel  in  his  eye? 

"A.  If  he  had  not  had  the  steel  in  his  eye,  he  might  not  have 
rubbed  his  eye,  at  least  not  as  vigorously  as  he  did,  and  so  he  might 
not  have  infected  the  eye." 

Dr.  Campbell  testified: 

"Mr.  Atkins:  How  much  more  chance  would  there  be  for  his  losing 
his  eye  after  having  the  piece  of  steel  in  there,  and  the  inflammation 
with  it,  how  much  more  chance  would  there  be  to  lose  the  eye? 

"A.  Just  as  soon  as  the  infection  gets  in  there  I  don't  think  it 
would  make  a  great  deal  of  difference.  You  are  just  as  liable  to 
lost  the  eye  as  soon  as  your  infection  gets  there,  whether  you  had 
anything  in  there  or  not.  The  point  is  here,  your  steel  would  be 
an  inciting  cause,  and  get  infection  on  that  account;  but,  once  you 
get  the  infection,  you  are  liable  to  lose  the  eye  one  way  or  the  other. 
The  point  is  here,  there  is  an  inciting  cause  from  rubbing  the  eye; 
the  effect  of  the  steel  being  there,  a  man  would  be  more  liable  to  get 
infection  of  the  eye,  but,  once  your  infection  is  in  there,  you  will 
lose  the  eye  from  the  gonorrheal  infection.  It  does  not  make  any 
difference  how  it  gets  in  there,  you  will  lose  the  sight  partially  or 
complete." 

The  burden  of  furnishing  evidence  from  which  the  inference 
can  be  legitimately  drawn  that  the  injury  arose  "out  of  and  in 
the  course  of  his  employment"  rests  upon  the  claimant, 
Bryant  v.  Fiscell,  84  N.  J.  Law,  72  (86  Atl.  458)  ;  3  Negligence 
&  Compensation  Cases  Annotated,  p.  585.  Ruegg  on  Employ- 
ers' Liability  and  Workmen's  Compensation  p.  343,  says: 

"If  an  inference  favorable  to  the  applicant  can  only  be  arrived  at 
by  a  guess  the  applicant  fails.  The  same  thing  happens  where  two 
or  more  inferences  equally  consistent  with  the  facts  arise  from 
them." 


McCOY  vs.  MICHIGAN  SCREW  CO.  299 

Boyd  on  Workmen's  Compensation,  §  559,  says: 

"The  workman  carries  the  burden  of  proving  that  his  injury  was 
caused  by  the  accident  and  where  he  fails  to  do  so,  and  where  the 
evidence  as  to  the  cause  of  the  injury  is  equally  consistent  with  an 
accident,  and  with  no  accident,  compensation  may  not  be  awarded 
him." 

In  the  instant  case  it  is  not  reasonable  to  say  that  he  would 
not  have  rubbed  his  eye  if  the  steel  had  not  lodged  there.  He 
might  not  have  rubbed  his  eye,  it  is  true;  but  it  is  just  as  rea- 
sonable to  suppose  that  he  might  have  had  occasion  to  rub  his 
eye  without  this  particular  inciting  cause.  By  the  medical  testi- 
mony it  conclusively  appears  that  the  infection  could  have 
taken  place  if  the  steel  had  not  been  there.  It  must  be  said, 
from  this  record,  that  the  loss  of  the  eye  was  directly  and  im- 
mediately due  to  the  infection  caused  by  the  gonorrhea,  which 
it  cannot  be  claimed  is  a  risk  incident  to  the  employment.  We 
are  of  the  opinion  that  the  facts  are  not  capable  of  support- 
ing the  inference  that  the  injury  arose  out  of  and  in  the 
course  of  the  employment. 

The  decision  of  the  industrial  accident  board  is  reversed. 


300  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

PHILIP  LIMRON, 

Claimant  and  Appellee, 
vs. 
FRANK  M.  BLAIR,  et  al., 

Defendants  and  Appellants. 

COMPENSATION  FOB  INJURIES  —  INDUSTRIAL  ACCIDENT  BOARD. 
A   workman   who   has   lost   a  leg   and   sustained   other   injuries   re- 
sulting in  total  disability  is  entitled,  under  the  workmen's  co.ii- 
'  pensation  act    (Act  No.  12,  Extra  Session   1912,  2  How.  Stat.   [2d 
Ed.]    §    3939   et  seq.),  to  recover  the   compensation  provided  for 
total  disability  for  a  period  of  not  over  500  weeks  up  to  a  maxi- 
mum  of  $4,000:    additional  compensation  cannot  be  awarded  for 
the  loss  of  the  leg. 

Certiorari  to  the  industrial  accident  board  by  Frank  M. 
Blair  and  others,  receivers  of  the  Pere  Marqnette  Railroad 
Company,  to  review  an  order  awarding  compensation  to 
Philip  Lirnron  for  personal  injuries.  Submitted  April  24, 
1914.  Reversed  June  1,  1914. 

W.  A.  Collins,  for  claimant. 

Parker,  Shields  &  Brown  (8.  L.  Merriam  and  J.  C.  Bills, 
of  counsel),  for  defendants. 

OSTRANDER,  J.  The  precise  ruling  of  the  industrial  acci- 
dent board,  as  expressed  in  its  written  finding,  is: 


"The  applicant  is  entitled  to  receive  under  the  act  one-half  (M>)  his 
average  weekly  wages  during  the  period  of  his  total  disability  due 
to  injuries  other  than  the  loss  of  the  lower  part  of  his  right  limb, 
and  at  the  conclusion  of  such  period  of  disability  is  entitled  to  pay- 
ment of  one-half  (¥_•)  his  wages  for  125  weeks  for  the  loss  of  the 
lower  right  limb  by  amputation  as  aforesaid,  less  six  weeks  -  dis- 
ability incident  to  such  amputation,  provided  that  such  weekly  pay- 
ments shall  not  in  any  event  extend  over  a  greater  period  than  500 
weeks." 


LIMRON  vs.  FRANK  M.  BLAIR,  ET.  AL.  301 

The  board  found  that,  from  the  date  of  the  injury  to  the 
time  of  making  the  award,  the  employee  had  been  totally  dis- 
abled, and  that  such  disability  would  continue  for  an  indefi- 
nite period;  that  the  main  cause  of  disability  was  an  injured 
shoulder. 

The  act  (Act  No.  10,  Pub.  Acts  Extra  Session  1012,  2  How. 
Stat.  [2d  Ed.]  §  3939  et  seq.),  provides  that  when,  as  the  re- 
sult of  an  industrial  accident,  the  incapacity  for  work  is  total, 
the  employer  shall  pay  a  weekly  compensation  equal  to  one- 
half  the  average  weekly  wages  for  a  period  not  exceeding  500 
weeks.  This  is  the  longest  period  of  compensatory  payments. 
A  period  of  disability  is  in  certain  cases  deemed  to  exist.  For 
the  loss  of  a  foot,  the  period  is  125  weeks.  For  the  loss  of  any 
two  members,  as  hands,  arms,  eyes,  feet,  legs,  the  period  of 
total  disability  is  deemed  to  be  500  weeks,  unless  the  weekly 
payments  amount  to  $4,000  in  a  shorter  period.  If  one  of  the 
results  of  accident  is  the  loss  of  a  foot,  the  period  of  total 
disability  is  125  weeks,  although  it  may  be  in  fact  only  6 
weeks.  The  period  is  not  extended  because,  as  a  result  of  the 
accident,  the  employee  was  in  fact  totally  disabled  for  a  per- 
iod of  125  weeks,  or  for  any  shorter  period.  If  he  is  in  fact 
disabled  by  the  loss  of  a  foot,  or  otherwise,  for  a  greater  per- 
iod than  125  weeks,  compensation  continues  until  disability  is 
removed,  or  the  maximum  of  compensation  is  paid.  The  stat- 
ute speaks  in  terms  of  disability.  All  of  its  provisions  being 
considered,  it  does  not  mean  that  compensation  must  be  paid 
during  a  period  of  actual  disability  and  also,  if  a  member  is 
lost,  during  a  period  equal  to  the  one  during  which  total  dis- 
ability is  deemed  to  continue.  It  does  not  provide  a  specific 
indemnity  for  the  loss  of  a  member  in  addition  to  compensa- 
tion for  disability.  The  aim  of  the  statute  is  to  afford  com- 
pensation if  the  employee  is  disabled.  When  the  period  of 
disability  ends,  compensation  ceases. 

It  follows  that  the  order  of  the  industrial  accident  board  is 
erroneous  and  must  be  and  is  vacated  and  set  aside. 


302  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

EMMA  FITZGERALD, 

Claimant  and  Appellee, 
vs. 
LOZIER  MOTOR  COMPANY, 

Defendant  and  Appellant. 

1.  APPEAL  AND  ERROR — REVERSAL  FOR  IMPROPER   ADMISSION   OF   TESTI- 
MONY. 

Under  the  Workmen's  Compensation  Act,  the  decision  of  Indus- 
trial Accident  Board  need  not  be  reversed  for  error  in  the  ad- 
mission of  incompetent  evidence  when  another  and  legal  basis 
for  its  findings  appears  in  the  record. 

2.  EVIDENCE — REPORT  OF  FOREMAN. 

Where  it  was  the  duty  of  the  foreman  of  the  department  in  which 
claimant's  husband  worked  to  report  all  accidents,  and,  upon 
learning  that  decedent  had  scratched  his  hand  on  a  n.anifold,  he 
made  an  entry  to  that  effect  and  reported  it  to  the  general  fore- 
man, in  proceedings  under  the  Workmen's  Compensation  Act  for 
compensation  for  the  servant's  death,  the  foreman's  memorandum 
was  admissible  in  evidence  against  the  employer,  establishing 
a  prima  facie  case  supporting  the  widow's  contention  that  her 
husband  was  injured  in  the  course  of  his  employment 

3.  SUFFICIENCY  OF  EVIDENCE. 

Evidence  in  proceedings  before  the  Industrial  Accident  Board  to 
recover  compensation  for  death  of  claimant's  husband  in  the 
course  of  his  employment  by  defendant,  held  sufficient  to  support 
finding  that  the  injury  occurred  in  the  course  of  deceased's  em- 
ployment and  proximately  caused  his  death. 


Certiorari  to  Industrial  Accident  Board. 

Proceedings  under  the  Workmen's  Compensation  Act  by 
Emma  Fitzgerald  to  obtain  compensation  for  the  death  of  her 
husband,  opposed  by  the  Lozier  Motor  Company,  employer. 
Compensation  was  awarded  in  the  sum  of  $7.21  per  week  for 
300  weeks,  and  the  employer  brings  certiorari..  Affirmed. 


FITZGERALD  vs.   LOZIER  MOTOR  CO.  303 

F.  J.  Ward,  of  Detroit,  for  appellant. 
Charles  Wagner,  of  Detroit,  for  appellee. 

KUHN,  J.  This  is  a  proceeding  brought  before  us  by  cer- 
tiorari  to  the  Industrial  Accident  Board  of  this  State,  to  re- 
view a  decision  rendered  by  said  Board  October  22,  1913, 
wherein  it  affirmed  an  award  by  a  board  of  arbitration  grant- 
ing the  claimant  and  appellee  the  sum  of  $7.21  per  week  for  a 
period  of  three  hundred  weeks. 

The  record  discloses  that  William  J.  Fitzgerald,  deceased, 
a  machinist  about  forty-five  years  of  age,  went  to  work  in  the 
assembling  department  of  the  Lozier  Motor  Company  on  or 
about  January  20,  1913.  He  worked  in  this  department  a  few 
days,  and  then  was  transferred  to  the  carburetor  department, 
where  he  continued  to  work  until  about  February  4,  1913. 

Sometime  in  the  last  of  January,  1913,  the  wife  of  the  de- 
ceased saw  a  scratch  on  his  hand,  at  which  time  the  hand  was 
badly  swollen  and  inflamed,  and  the  deceased  told  her  that  he 
received  it  on  the  carburetors  in  the  assembly  room  of  the 
Lozier  Company.  During  the  latter  part  of  January  the  de- 
ceased went  to  see  Mr.  Whitehead,  an  employee  of  the  Lozier 
Motor  Company,  to  have  the  scratch  on  his  hand  dressed.  His 
hand  at  the  time  was  badly  inflamed,  and  it  looked  as  if  it  had 
been  infected  for  at  least  forty-eight  hours,  and  the  deceased 
received  medical  attention  from  Mr.  Whitehead. 

About  the  30th  of  January  Mr.  Brown,  an  employee  of  the 
Lozier  Motor  Company,  and  the  foreman  of  the  department  in 
which  the  deceased  was  employed,  noticed  him  at  work  with  a 
bandage  on  his  thumb.  He  asked  the  deceased  what  was  the 
trouble  with  his  thumb,  and  the  deceased  informed  him  that 
he  had  scratched  it  about  a  week  prior  to  that  date,  that  is, 
on  January  23.  Working  on  the  same  bench  about  six  feet 
from  the  deceased  was  a  Mr.  Anderson,  who  stated  that  he 
did  not  see  nor  did  he  know  anything  of  an  accident  until  the 
deceased  told  him  he  had  hurt  his  hand  on  the  manifold  on  the 
day  before  he  had  the  talk  with  him. 

On  the  5th  of  February  the  condition  of  Mr.  Fitzgerald's 


304  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

hand  was  such  that  he  was  obliged  to  quit  work  and  was  never 
afterwards  able  to  go  back  to  his  work,  and  continued  medical 
treatments  until  the  day  of  his  death,  which  was  March  8,  1913. 
The  deceased  treated  with  Dr.  Hayes  until  about  the  12th  of 
February,  at  which  date  he  went  to  the  office  of  Dr.  Kaymond 
C.  Andries,  who  continued  to  treat  him  until  the  time  of  his 
death.  The  doctor  gave  as  the  cause  of  his  death  "Arterio- 
sclerosis and  Myocarditis."  Myocarditis  the  doctor  explained 
to  mean  inflammation  of  the  heart  muscle,  and  testified  it 
might  be  caused  by  a  toxic  infection,  and  that  such  an  infec- 
tion would  tend  to  lower  bodily  resistance  to  other  disease.  He 
also  testified  that  when  he  first  saw  the  deceased  it  was  appar- 
ent that  he  had  an  infection,  and  that  the  condition  of  the 
hand  showed  that  there  had  been  an  entrance  of  micro-organ- 
isms into  it  in  way  from  some  cause. 

A  nurse,  who  stated  that  she  had  had  some  experience  in  the 
treatment  of  cases  of  blood-poisoning,  testified  as  to  the  con- 
dition of  the  deceased  on  the  day  before  and  up  to  the  time 
of  his  death,  and  stated  that  the  discoloration  in  spots  on  his 
body,  in  her  opinion,  indicated  symptoms  of  blood-poisoning,, 
and  that  she  also  saw  the  wound  on  the  hand. 

The  assignments  of  error  relied  upon  by  appellant  are  as 
follows : 

That  the  Industrial  Accident  Board  erred: 

1st.  In  holding  that  said  William  J.  Fitzgerald,  deceased,  received 
a  personal  injury  arising  out  of  and  in  the  course  of  his  employment 
while  he  was  employed  by  your  petitioner. 

2nd.  In  holding  that  said  William  J.  Fitzgerald,  deceased,  died  as 
the  result  of  a  personal  injury  arising  out  of  and  in  the  course  of 
his  employment. 

3rd.  In  holding  that  a  personal  injury  arising  out  of  and  in  the 
course  of  his  employment  was  the  proximate  cause  of  the  death  of 
the  deceased,  William  J.  Fitzgerald. 

4th.  In  holding  that  the  death  of  said  William  J.  Fitzgerald  was 
not  the  result  of  a  disease  unconnected  in  any  way  with  his  employ- 
ment with  your  petitioner. 

5th.  In  holding  that  the  death  of  said  William  J.  Fitzgerald  was 
the  result  of  a  personal  injury  sustained  on  or  about  January  23rd, 
1913,  while  in  the  employ  of  your  petitioner. 


FITZGERALD   vs.   LOZIER  MOTOR  CO.  305 

6th.  In  admitting  into  evidence  and  considering  as  part  thereof 
the  evidence  of  the  claimant,  Emma  Fitzgerald,  the  witnesses,  Wil- 
liam Brown  and  Burns  L.  Whitehead,  as  to  conversations  they  had  with 
the  deceased,  which  were  not  in  the  presence  of  your  petitioner  or  any 
officer  thereof  and  not  at  the  time  of  the  alleged  accident. 

7th.  In  admitting  as  evidence  and  considering  as  part  thereof  the 
memorandum  made  by  the  witness,  William  Brown,  of  a  conversation 
had  between  said  William  Brown  and  said  deceased,  William  J.  Fitz- 
gerald, in  regard  to  what  said  William  J.  Fitzgerald  had  told  him 
pertaining  to  said  alleged  accident  and  personal  injury. 

8th.  In  determining  and  ordering  your  petitioner  to  pay  said  claim- 
ant, Emma  Fitzgerald,  the  sum  of  Seven  and  Twenty-one  Hundredths 
Dollars  ($7.21)  per  week  for  three  hundred  weeks  as  compensation 
scause  of  the  death  of  said  William  J.  Fitzgerald. 

It  may  be  noticed  that  the  assignments  of  error  relate  prin- 
cipally to  three  questions :  whether  the  unrestricted  admission 
of  hearsay  testimony  was  reversible  error,  and  whether  there 
was  any  competent  evidence  in  the  case  on  which  a  finding 
could  be  based  that  the  injury  complained  of  arose  in  the 
course  of  the  deceased's  employment,  and  whether  it  can  be 
said  that  the  injury  complained  of  was  the  proximate  cause  of 
the  death  of  the  deceased. 

It  is  urged  by  the  appellee  that  the  hearsay  rule  should  not 
be  held  to  apply  to  arbitration  under  the  provisions  of  the 
Workmen's  Compensation  Act.  This  question  has  quite  re- 
cently had  the  consideration  of  this  Court,  in  the  case  of  Reck 
v.  Wittleberger,  21  D.  L.  N.  713  (found  also  in  5th  Negligence 
and  Compensation  Cases  Annotated,  p.  917),  and  the  rule 
against  hearsay  evidence  and  its  applicability  to  proceedings 
under  this  Act  are  very  fully  discussed,  and  this  conclusion  is 
arrived  at: 

"We  do  not  think,  however,  that  under  the  language  used  in  our 
Workmen's  Compensation  Act  the  decisions  of  its  administrativ3 
board  must  be  in  all  cases  reversed  under,  the  rule  of  presumptive 
prejudice,  because  of  error  in  admission  of  incompetent  testimony, 
when  in  the  absence  of  fraud,  there  appears  in  the  record  a  legal 
basis  for  its  findings,  which  are  made  'conclusive'  by  statute  when 
said  board  acts  within  the  scope  of  its  authority." 
39 


306  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

The  question  then  is,  was  there  any  competent  evidence 
offered  to  make  a  prima  facie  case  in  support  of  the  claimant's 
contention?  Mr.  Brown  who  was  the  foreman  in  charge  of  the 
department  of  the  factory  in  which  the  deceased  was  employed, 
testified  that  it  was  his  duty  to  inquire  about  all  accidents  that 
occurred  in  the  factory,  and  that  he  first  noticed  that  Mr. 
Fitzgerald  had  sustained  an  injury  on  January  30,  that  after 
inquiring  of  Mr.  Fitzgerald  concerning  the  nature  of  the  in- 
jury he  immediately  made  a  memorandum  in  writing  of  the 
information  which  he  obtained,  which  was  offered  in  evidence, 
and  which  read  as  follows: 

"W.  J.  Fitzgerald,  last  Thursday  afternoon,  scratched  on  manifold, 
right  hand,  on  top  of  the  thumb  joint.  January  23rd,  1913." 

that  he  immediately  thereafter  notified  Mr.  Anderson,  the 
general  foreman  of  the  Lozier  Motor  Company  of  the  fact  of 
the  accident.  It  appears  that  it  was  the  duty  of  the  employee, 
as  soon  as  he  was  injured,  to  report  his  injuries  however  slight 
to  the  foreman  of  the  shop  in  which  he  was  employed,  and 
that  notice  of  this  was  given  to  all  the  employees  by  signs 
posted  throughout  the  shop.  It  also  appears  that  the  Lozier 
Motor  Company  made  a  report  of  the  accident  to  the  Koyal  In- 
demnity Company,  which  report  was  submitted  to  counsel 
during  examination  before  the  arbitrators  but  was  not  offered 
in  evidence. 

It  is  the  contention  of  counsel  that  the  memorandum  made 
by  the  Company's  foreman  is  competent  proof  as  an  admission 
on  the  part  of  the  Company  by  its  agent.  On  the  other  hand, 
it  is  claimed  that  the  information  therein  contained  is  based 
purely  on  hearsay,  and  is  inadmissible  for  that  reason.  In 
our  opinion,  under  the  circumstances  of  this  case,  the  memo- 
randum was  admissible  as  an  admission.  Under  the  rules  it 
was  the  duty  of  the  employee  to  immediately  notify  the  fore- 
man in  charge  of  the  particular  division  of  the  factory  in 
which  he  worked  of  the  fact  of  an  injury.  It  thereupon  be- 
came the  duty  of  the  foreman  of  the  factory  to  immediately 
notify  his  superior  and  also  to  refer  the  employee  to  another 


FITZGERALD  vs.   LOZIER  MOTOR  CO.  307 

foreman  who  had  charge  of  the  "first  aid"  work  in  the  plant. 
It  clearly  appears  that  Fitzgerald,  the  deceased,  after  having 
received  the  injury  reported  to  the  foreman  in  charge  of  the 
shop  in  which  he  was  working,  and  this  foreman  thereupon 
perpetuated  the  information  received  by  him  by  putting  it  in 
writing,  and  thereupon  notified  his  superior  of  the  fact  of  the 
injury.  That  these  steps  \vere  taken  was  further  evidenced 
by  the  fact  that  the  defendant  company  notified  the  indem- 
nity company. 

It  may  be  said  that  admissions  of  this  kind,  which  are  not 
made  upon  the  party's  personal  knowledge  of  the  facts,  have 
little  probative  force,  but  the  weight  of  such  an  admission  in 
the  trial  of  an  ordinary  case,  and  the  circumstances  under 
which  it  was  made,  would  be  for  the  consideration  of  the  jury. 
In  the  proceeding  before  us,  in  our  opinion,  the  admission  may 
be  considered  at  least  as  prima  facie  evidence  that  such  an 
accident  and  injury  occurred  as  reported,  and  this  makes  a 
legal  basis  for  the  findings  of  the  board.  See  17  Cyc.  814. 

Without  considering  the  purely  hearsay  testimony,  which  it 
may  be  said  was  erroneously  admitted,  and  considering  merely 
the  testimony  of  the  physician  and  the  nurse  and  the  admis- 
sion of  the  Company's  foreman,  we  think  that  there  is  suffi- 
cient to  support  the  inference  that  the  injury  arose  out  of 
and  in  the  course  of  the  deceased's  employment,  and  was  the 
proximate  cause  of  his  death. 

We  therefore  affirm  the  decision  of  the  Industrial  Accident 
Board. 


308  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

WILLIS  M.  CLARK, 

Claimant  and  Appellee, 
vs. 
DAVID  S.  CLARK 

and 

UNION  CASUALTY  INSURANCE  COMPANY, 
Respondents  and  Appellants. 

INJURIES  IN   THE   COURSE  OF  EMPLOYMENT — FIGHT  KEEPING   OFF   TREJ 
PASSERS. 

The  applicant  was  a  carpenter  foreman  and  was  in  the  employ  ol 
his  brother  engaged  in  erecting  a  dwelling  house.  He  engagec 
in  a  fight  with  men  who  were  attempting  to  unload  brick  01 
his  employer's  property,  forcing  them  to  desist  from  so  doing. 
On  the  following  day  the  men  returned  with  reinforcements  am 
with  the  evident  intention  of  renewing  the  fight.  In  the  alter- 
cation that  ensued,  applicant  was  struck  in  the  eye  by  a  piece  oi 
iron  thrown  by  one  of  the  attacking  party  and  severely  injured. 

HELD:     That  the  injury  did  not  arise  out  of  the  employment. 


Certiorari  to  the  Industrial  Accident  Board  to  review  th< 
action  of  that  Board  in  awarding  compensation  to  Willis  M. 
Clark  for  injuries  received  while  in  the  employment  of  David 
S.  Clark.  Reversed. 

Frederick  J.  Ward,  of  Detroit,  for  claimant. 

Walters  d  Hicks,  of  Detroit,  for  defendants  and  appellants. 

BIRD,  J.     Claimant  was  a  carpenter  foreman  in  the  employ 
of  his  brother,  David  Clark,  who  was  erecting  a  dwelling  01 
Churchill  Avenue,  in  the  City  of  Detroit.     David  also  owne< 
the  adjoining  lot  upon  which  he  intended  to  erect  a  dwelling, 
and  had  let  the  contract  to  excavate  for  the  cellar.    Claimain 
received  instructions  from  him  to  permit  no  building  materials 


CLARK  vs.  CLARK.  309 

for  other  dwellings  being  erected  in  the  vicinity,  to  be  depos- 
ited on  the  adjoining  lot.  On  March  23rd  two  men  with  a 
wagon  load  of  bricks  drove  on  to  the  adjoining  lot  and  began 
unloading  them.  Claimant  advised  them  that  the  bricks  were 
not  for  his  employer,  and  warned  them  to  desist.  They  re- 
fused to  obey  the  instructions  and  then  a  fight  ensued,  in 
which  the  claimant  got  the  better  of  it.  The  following  day 
the  teamster  returned  with  a  reserve  force,  with  the  evident 
purpose  of  "getting  even."  Some  intemperate  language  passed 
between  them,  and  claimant,  who  was  at  work  on  the  rear 
porch.  David  overheard  the  talk  in  the  basement  and  came 
out  and  ordered  them  away.  They  refused  to  go  and  he  en- 
gaged in  a  fight  with  them.  Claimant  thinking  that  his 
brother  David  needed  help  went  to  his  aid  and  kept  back  some 
of  the  reserve  force,  but  did  not  himself  engage  in  the  fight. 
While  so  engaged,  one  of  the  assailants,  threw  an  iron  missile 
and  struck  claimant  in  the  eye,  thereby  permanently  destroy- 
ing the  sight.  Compensation  was  demanded  by  him  under 
Act  10  of  the  Laws  of  1912.  The  insurance  company  refused  to 
respond  and  he  thereupon  made  an  application  to  the  Indus- 
trial Accident  Board.  The  claim  took  the  usual  course  before 
the  Board,  and  resulted  in  allowance  being  made  of  flO  per 
week  for  one  hundred  weeks.  Eespondents  have  brought  the 
proceedings  here  for  review  with  the  claim  that  the  award 
should  be  set  aside  on  the  ground  that  the  injury  did  not  arise 
out  of  and  in  the  course  of  claimant's  employment  within  the 
meaning  of  said  Act. 

The  theory  upon  which  claimant  seeks  to  bring  his  claim 
under  the  statute,  is  that  he  received  the  injury  while  protect- 
ing his  master's  property  against  trespassers.  Testifying  as 
to  his  duties  claimant  said: 

"I  was  in  fact  over  all  of  the  excavating,  and  from  then  on  up 
until  the  work  was  finished,  representing  my  brother  when  he  wasn't 
there  and  when  he  was  there." 

Conceding  claimant's  authority  and  duty  as  are  stated,  he 
fails  to  make  a  satisfactorv  connection  between  them,  and  his 


310 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


acts  at  the  time  he  received  the  injury.  Had  he  received  the 
injury  on  the  previous  day  while  he  was  endeavoring  to  pro- 
tect his  master's  property  against  trespassers,  the  connection 
would  be  obvious.  That  incident  happened  the  previous  day, 
and  appeared  to  be  a  closed  incident  except  for  the  ill  feeling 
which  it  engendered.  The  following  day  the  same  parties  re- 
appeared, not  for  a  like  purpose  as  on  the  previous  day,  but 
evidently  for  the  purpose  of  getting  revenge,  although  they 
claimed  to  be  in  search  of  a  lost  work  ticket.  They  assailed 
claimant  with  words  only,  but  their  attitude  toward  him  was 
threatening.  David  overheard  it  and  came  out  of  the  base- 
ment and  took  charge  of  the  controversy  himself.  After  he 
had  engaged  in  the  fight  and  appeared  to  be  succeeding,  claim- 
ant, who  had  been  an  observer,  came  unsolicited  to  his  broth- 
er's aid  by  keeping  off  the  reserve  force,  and  while  doing  so 
was  hit  with  a  flying  missile  and  injured.  It  may  have  been 
commendable  in  him  to  volunteer  to  assist  his  brother  against 
such  great  odds,  but  that  does  not  satisfactorily  answer  th< 
question  what  connection  his  acts  had  with  his  employment. 
He  was  not  called  upon  to  protect  his  master's  property,  as  01 
the  previous  day.  He  was  not  asked  to  assist  his  master  in  th< 
fight  on  the  second  day.  His  action  wras  purely  a  voluntary 
one,  and  it  seems  to  us  no  different  than  as  though  he  had 
discovered  the  same  men  fighting  with  his  brother  a  week  aft- 
erward ten  blocks  away,  or  as  though  claimant  had  observe 
a  fight  going  on  across  the  street  and  had  gone  there  to  gel 
a  better  view,  and  while  there  had  been  hit  by  a  flying  missih 
and  injured.  Had  claimant  remained  at  his  work  he  would 
not  have  been  injured.  His  presence  at  the  place  of  fighting 
was  in  pursuance  of  no  demand  of  his  employment.  Neither 
was  it  in  aid  of  any  material  interest  of  his  master.  His  pres- 
ence there  and  the  assistance  which  he  rendered  was  solely  in 
the  interest  of  his  master's  personal  safety.  An  injury 
ceived  under  such  circumstances  cannot  be  said,  under  a  fail 
construction  of  the  act,  to  have  arisen  out  of  and  in  the  cou] 
of  his  employment. 


OPITZ  vs.  CHARLES  HOERTZ  &  SON,  ET  AL.  311 

See  Collins  v.  Collins,  2  Ir.  R.,  104. 

Mitchinson  v.  Day  Bros.,  6  Butterworth's  C.  C.  100. 


But  claimant  says  he  was  in  charge  of  his  brother's  work 
while  he  was  away,  and  also  while  he  was  present.  If  his 
brother  David  were  present  and  did  not  assume  to  act,  claim- 
ant probably  had  the  authority  to  act,  but  when  the  master 
was  present,  and  took  personal  charge  of  the  matter  himself, 
it  necessarily  excludes  the  idea  of  claimant's  having  charge 
of  it. 

The  finding  of  the  Industrial  Accident  Board  must  be  re- 
versed and  the  award  set  aside. 


FEIEDA  OPITZ, 

Applicant, 
vs. 

CHARLES  HOERTZ  &  SON,  Et  Al., 
Respondents. 

EMPLOYER — INDEPENDENT  CONTRACTOR — INSURANCE. 
Applicant's  decedent  was  killed  while  engaged  in  clearing  up  the 
wreckage  of  a  fire  which  destroyed  the  plant  of  Brown  &  Sehler, 
his  death  being  caused  by  the  falling  of  a  brick  wall  of  the 
burned  building.  The  work  was  being  done  under  the  immediate 
direction  of  Hoertz  &  Son,  a  firm  of  building  contractors,  pur- 
suant to  an  agreement  entered  into  with  Brown  &  Sehler,  pro- 
viding for  the  clearing  up  of  the  debris  and  the  erection  of  new 
.  buildings  on  the  site.  It  was  contended  by  respondents  that 
Hoertz  &  Son  were  employed  merely  to  superintend  and  direct 
the  work  and  that  Brown  &  Sehler  were  in  fact  the  employers  of 
deceased. 


312  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

HELD:  1.  That  Hoertz  &  Son  had  full  and  unrestricted  charge 
of  the  work,  together  with  the  men  employed  thereon,  and  that 
under  all  the  facts  and  circumstances  of  the  case  they  were  in- 
dependent contractors  and  liable  as  the  employer  of  decedent  for 
the  payment  of  compensation  to  the  widow. 

2.  That  under  the  provisions  of  the  Workmen's  Compensation 
Law,  the  insurance  carrier  is  directly  liable  to  the  injured  work- 
man or  his  dependents,  and  that  the  Board  has  authority  in 
making  its  award  to  determine  and  fix  the  liability  of  the  insurer. 


Application  to  Industrial  Accident  Board  to  decide  who 
were  the  actual  employers  of  Carl  Opitz,  who  was  killed  while 
at  work. 


Opinion  by  the  Board : 

On  February  1,  1915,  Carl  Opitz,  applicant's  husband  was 
killed  while  working  on  the  premises  of  Brown  &  Sehler  in 
Grand  Eapids,  he  being  engaged  with  other  men  in  clearing 
up  the  wreckage  of  the  fire  that  destroyed  the  Brown  &  Sehler 
buildings.  The  site  was  being  cleared  for  the  purpose  of  erect- 
ing new  buildings  thereon.  The  work  was  commenced  on  the 
morning  of  February  1st  with  a  force  of  about  35  men.  At 
one-thirty  in  the  afternoon  of  that  day  a  brick  wall  of  the 
burned  building  fell,  causing  the  death  of  Carl  Opitz  and  sev- 
eral other  men,  besides  seriously  injuring  a  number  of  the 
workers.  It  is  conceded  that  the  accident  arose  out  of  and  in 
the  course  of  the  employment  of  deceased  and  that  the  appli- 
cant in  this  case  was  wholly  dependent.  It  is  also  conceded 
that  both  Hoertz  &  Son  and  Brown  &  Sehler  were  under  the 
Michigan  Workmen's  Compensation  Law,  and  that  the  South- 
western Surety  Insurance  Company  was  insurer  of  Hoertz  & 
Son  under  such  Compensation  law. 

The  question  as  to  who  was  the  employer  is  the  main  point 
in  dispute  in  the  case,  and  the  settlement  of  this  point  will  be 
conclusive  as  to  the  other  cases  pending  before  the  Board  for 
injury  and  death  growing  out  of  this  accident.  It  is  claimed 


OPITZ  vs.  CHARLES  HOERTZ  &  SON,  ET  AL.  313 

on  the  part  of  Hoertz  &  Son  that  Brown  &  Sehler  wore  the  em- 
ployers and  that  Hoertz  &  Son  were  merely  acting  as  superin- 
tendent and  agent  for  such  owners  in  clearing  the  site  and 
erecting  new  buildings  following  the  fire.  On  the  other  hand 
it  is  claimed  by  Brown  &  Sehler  that  Hoertz  &  Son  were  inde- 
pendent contractors  in  the  performance  of  the  work  in  ques- 
tion, and  that  said  Hoertz  &  Son  were  the  employers  of  the 
men  killed  and  injured,  and  therefore  liable  to  pay  the  com- 
pensation. The  question  of  the  liability  of  the  Insurance  Com- 
pany and  the  right  of  the  Board  to  make  an  award  against  it 
is  also  involved. 

Brown  &  Sehler  were  engaged  in  manufacturing  and  selling 
harnesses,  saddlery  and  leather  goods,  their  business  being 
carried  on  in  the  three  and  four-story  building  owned  by  said 
firm,  located  on  the  west  bank  of  the  Grand  River  and  front- 
ing on  Bridge  Street  in  Grand  Rapids.  The  firm  had  been 
engaged  in  this  business  for  a  number  of  years,  having  a  con- 
siderable number  of  employes,  and  operating  under  the  Work- 
men's Compensation  Law  without  insurance,  having  been  per- 
mitted to  carry  their  own  risk  by  the  Board.  On  the  night 
of  January  15th,  their  building  and  plant  were  destroyed  by 
fire,  the  interior  of  the  building  being  a  complete  wreck,  but 
leaving  a  portion  of  the  brick  walls  standing.  The  firm  was 
desirous  of  clearing  up  the  site  and  erecting  new  buildings, 
and  entered  into  negotiations  for  that  purpose  with  Hoertz  & 
Son,  who  were  extensively  engaged  in  the  business  of  contract- 
ing and  building  in  the  city  of  Grand  Rapids  and  elsewhere, 
and  such  negotiations  resulted  in  the  following  written  pro- 
posal being  made  to  Brown  &  Sehler  on  January  29th,  viz.: 

"January  29,  1915.  Brown  &  Sehler  Company,  Grand  Rapids,  Michi- 
gan:—Gentlemen: — We  hereby  propose  to  superintend  and  furnish  a 
superintendent  for  the  clearing  of  your  site,  and  any  new  buildings  you 
will  build  immediately,  for  10%  the  actual  cost  of  labor  and  new  mater- 
ial required  in  re-construction.  It  is  the  understanding  that  we  are  to 
co-operate  with  you  in  the  purchase  of  any  new  material  and  work  in 
accordance  with  your  wishes,  or  the  hiring  of  teams  and  men.  This 
proposition  carries  with  it  that  Hoertz  &  Son  will  furnish  all  the 
necessary  tools  required  to  carry  on  this  work  in  first  class  shape, 


314  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

and  that  the  owner  pays  all  bills,  and  that  the  10%  is  figured  from 
the  net  cost  price.  Respectfully  yours,  Chas.  Hoertz  &  Son,  W.  C. 
Hoertz." 

This  proposal  was  made  to  Brown  &  Sehler  on  January  29th, 
which  was  Friday.  On  Saturday  morning,  January  30th, 
both  Charles  Hoertz  and  William  C.  Hoertz  called  at  the  tem- 
porary office  of  Brown  &  Sehler  and  discussed  the  matter  with 
Mr.  Sehler,  discussing  general  matters  and  some  details.  Mr. 
Sehler,  on  the  part  of  his  firm,  accepted  their  proposal  verb- 
ally, and  told  them  to  go  ahead  with  the  work.  Hoertz  &  Son 
thereupon  made  preparations  to  commence  the  work  on  Mon- 
day morning,  February  1st,  and  among  other  things  placed 
their  advertisement  in  some  of  the  Grand  Rapids  papers  for 
men  wanted  at  the  Brown  &  Sehler  building  for  work,  and  on 
Monday  morning  they  put  about  35  men  to  work  on  the  job, 
all  of  them  being  hired  for  the  purpose,  except  the  superintend- 
ent and  timekeeper  who  were  regular  employes  of  Hoertz  & 
Son. 

Before  commencing  work  on  Monday  morning,  William  C. 
Hoertz  made  out,  dated,  signed  and  had  posted  on  the  prem- 
ises notices  to  employes  that  their  employer  was  operating  un- 
der the  Michigan  Workmen's  Compensation  Law,  the  same  be- 
ing the  blank  notices  furnished  employers  for  this  purpose  by 
the  Industrial  Accident  Board,  12  by  18  inches  in  size,  such 
notices  reading  as  follows : 

"NOTICE   TO   EMPLOYES. 

All  workmen  or  operatives  employed  by  the  undersigned  in  or 
about  this  establishment  are  hereby  notified  that  the  employer  or 
employers  owning  or  operating  the  same  have  filed  with  the  Indus- 
trial Accident  Board,  at  Lansing,  notice  of  election  to  become  sub- 
ject to  the  provisions  of  Act  No.  10  of  Public  Acts,  Extra  Session,  1912. 

(This  Act  is  commonly  known  as  the  Workmen's  Compensation 
Law.) 

You  are  further  notified  that  unless  you  serve  written  notice  on 
your  employer  of  your  election  not  to  come  under  the  law,  the  act 
will  immediately  apply  to  you. 


OPITZ  vs.  CHARLES  HOERTZ  &  SON,  ET  AL.  315 

If  you  do  notify  your  employer  that  you  elect  not  to  come  under 
said  act,  you  may  afterwards  waive  such  claim  by  a  notice  in  writing, 
which  shall  take  effect  five  days  after  it  is  delivered  to  the  em- 
ployer. At  the  expiration  of  which  period  the  law  will  apply  to  you. 


INJURY  NOT  RESULTING  IN   DEATH— NOTICE  OF 
(How  to  Proceed,  etc.) 

INJURY  RESULTING  IN  DEATH— NOTICE  OF 
(Provisions  as  to  notice,  etc.) 

LIMIT  OF  PERIOD  OF  NOTIFICATION. 
(Provisions  of  Law  given,  etc.) 

Date  2/1-1915  7  A.  M. 

Chas.   Hoertz  &  Son,  Employer. 

By  Wm.  C.  Hoertz. 
(For  Brown  &  Sehler  Co.)" 

The  words  ''for  Brown  &  Sehler  Co."  are  given  in  paren- 
thesis above,  for  the  reason  that  they  are  written  in  a  different 
hand-writing  and  smaller  than  the  signature,  "Chas.  Hoertz 
&  Son,  By  Win.  C.  Hoertz." 

Hoertz  &  Son  or  their  superintendent  selected  the  men  who 
were  put  to  work,  employed  them,  fixed  their  wages,  and  di- 
rected and  controlled  their  work.  It  is  true  that  Mr.  Sehler 
was  desirous  that  some  of  the  old  employes  of  Brown  &  Seh- 
ler be  given  work,  and  a  couple  of  these  men  were  set  to  work 
by  Hoertz  £  Son  at  his  request.  It  is  also  true  that  Mr.  Seh- 
ler made  some  suggestions  as  to  where  to  begin  the  work  and 
the  handling  of  some  of  the  material,  but  we  think  the  record 
fairly  shows  that  this  was  by  way  of  suggestion  and  for  the 
purpose  of  enabling  him  to  look  after  salvage  if  any  property 
was  found  in  the  debris  worth  saving.  The  work  of  clearing 
the  site  and  debris  occupied  something  more  than  two  weeks 
time,  and  the  erection  of  the  new  buildings  thereafter  required 
a  couple  of  months.  Hoertz  &  Son  had  been  engaged  in  the 


316 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


business  of  contracting  and  building  for  15  years  and  upward* 
in  Grand  Kapids  and  vicinity,  had  offices,  tools  and  applianc< 
for  the  work,  and  were  engaged  in  the  business  of  contracting 
and  building  as  an  independent  business,  which  appears  t( 
have  been  carried  on  successfully  by  them  on  a  large  scale.  As 
such  contractors  they  had  other  buildings  in  the  course  ol 
erection  at  the  time  of  the  accident,  some  being  done  on 
basis  of  a  percentage  of  the  cost  of  labor  and  material. 

Saturday  forenoon,  January  30th,  some  talk  was  had 
tween  Wm.  C.  Hoertz  and  Brown  &  Sehler  relative  to  insui 
ance,  which  resulted  in  Mr.  Hoertz  calling  up  the  office  of  the 
Southwestern  Surety  Insurance  Company  in  Detroit  and  tall 
ing  with  Mr.  Evans,  the  agent  of  said  company.     Mr.  Hoerl 
testified  that  the  purpose  of  the  call  was  to  arrange  for  lii 
bility  insurance  for  Brown  &  Sehler's  employes,  and  that  sue] 
arrangement  was  made  by  telephone,  he  to  send  on  a  check  foi 
$25  on  behalf  of  Brown  &  Sehler  as  a  binder.    He  further  te* 
tified  that  the  check  was  sent  before  noon  on  Saturday  an< 
that  the  insurance  was  to  be  in  effect  at  12  o'clock  Januai 
30th.  It  appears  that  the  check  was  in  fact  sent  on  the  da1 
referred  to,  and  was  received  by  the  insurance  company  an< 
cashed.    It  further  appears  that  Mr.  Evans,  representing  tin 
Surety   Company,   came  to   Grand  Eapids  on   February  3r< 
immediately  saw  Wm.  C.  Hoertz  and  attached  to  his  liabilil 
insurance  policy  a  rider,  the  principal  portion  of  which  is 
follows : 

"January  30,  1915.  It  is  understood  and  agreed  that  this  policy 
hereby  extended  to  cover  operations  as  listed  in  the  schedule  of  policy 
in  connection  with  the  contract  for  Brown  &  Sehler  building,  Bridge 
and  Front  Streets,  Grand  Rapids,  Michigan.  Subject  otherwise  to  all 
the  conditions,  agreements  and  limitations,  etc.  *  *  *  Counter- 
signed at  Detroit,  Michigan,  this  30th  day  of  January,  1915.  Morlc 
&  Coleman,  General  Agents,  per  Warren  A.  Morley." 

After  attaching  this  rider  to  the  policy,  Mr.  Evans  and  Wi 
C.  Hoertz  went  around  to  the  families  of  all  of  the  men  wh< 
suffered  from  the  accident,  and  Mr.  Evans,  who  assumed 
speak  for  the  Surety  Company,  told  the  injured  men  and  th< 


OPITZ  vs.  CHARLES  HOERTZ  &  SON,  ET  AL.  317 

dependents  that  the  compensation  provided  for  by  the  law 
would  be  paid,  etc.,  explaining  to  all  of  them  that  Chas.  Hoertz 
&  Son  were  covered  by  the  policy  of  the  Surety  Company. 

The  work  was  in  progress  less  than  a  day  before  the  occur- 
rence of  the  accident,  but  no  claim  is  made  by  respondents 
that  it  was  handled  or  conducted  differently  from  what  was 
originally  intended  by  the  parties,  or  that  any  changes  were 
made  in  the  manner  of  handling  the  work  or  the  men  after  the 
occurrence  of  the  accident.  Hoertz  &  Son,  it  appears,  got  right 
onto  the  job  with  their  tools  and  appliances,  organized  their 
force  and  proceeded  to  do  the  work  in  the  manner  usual  with 
contractors.  They  planned  the  ways  of  doing,  and  the  means 
as  well,  purchased  the  materials  and  employed  and  directed 
the  men,  and  in  the  end  delivered  the  complete  result  to  the 
owners,  receiving  therefor,  in  addition  to  the  actual  cost  of 
labor  and  material,  10%  thereof.  It  fairly  appears  that  Brown 
&  Sehler  had  no  expert  knowledge  of  building  and  did  not  as- 
sume to  do  any  part  of  the  work  or  direct  the  manner  of  handl- 
ing or  performing  it,  they  being  apparently  not  qualified  by 
knowledge  or  experience  so  to  do.  Hoertz  &  Son  discharged 
the  men  and  fixed  or  changed  their  wages  as  they  saw  fit,  and 
handled  the  entire  work  and  the  men  employed  thereon  with 
as  full  and  complete  control  and  authority  as  if  they  were  the 
sole  owners  or  employers.  It  also  seems  clear  that  the  parties 
at  the  time  of  entering  into  the  contract  understood  and  in- 
tended that  the  matters  would  be  so  handled,  and  that  the 
parties  would  conduct  themselves  with  reference  to  is  sub- 
stantially as  they  did. 

The  written  proposal  at  first  blush  would  seem  to  imply 
that  Hoertz  &  Son  were  only  to  supervise  and  act  as  agent 
for  Brown  &  Sehler  in  doing  this  work.  The  writing,  how- 
ever, is  to  be  read  in  the  light  of  the  surrounding  circumstances 
and  conditions,  and  the  actions  of  the  parties  with  reference 
to  the  same.  The  true  purpose  in  the  interpretation  of  con- 
tracts is  to  ascertain  the  intent  of  the  parties,  the  writing  be- 
ing an  aid  to  this  end  and  in  many  cases  conclusive.  The  cor- 
rect rule,  we  think,  is  declared  by  the  U.  S.  Court  of  Appeals, 


318  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Sixth  Circuit,  in  the  case  of  Mishawxtka  Woolen  Manufactur- 
ing Company  vs.  Westveer,  191  Federal  Keporter  467;  as  fol- 
lows: 

"The  Court  looks  not  merely  to  the  whole  instrument,  but  also  to 
the  acts  and  circumstances  attending  its  execution  and  performance." 

Keeping  in  mind  the  fact  that  Hoertz  &  Son  were  exercising 
and  following  an  independent  business  of  their  own,  maintain- 
ing an  office,  tools,  appliances,  and  equipment,  and  accustomed 
to  take  jobs  on  a  percentage  basis,  and  applying  the  broad 
rule  of  interpretation  above-referred  to,  we  are  forced  to  the 
conclusion  that  the  status  of  Hoertz  &  Son  was  that  of  inde- 
pendent contractors,  and  that  they  were  in  fact  the  employers. 
It  might  further  be  said  that  the  conduct  of  Hoertz  &  Son  in 
advertising  for  men  to  do  this  work,  posting  the  notices  with 
reference  to  the  Compensation  Law,  and  employing  and  direct- 
ing the  men  as  in  this  case,  would  go  far  to  preclude  them 
from  denying  to  such  men  the  right  to  claim  compensation 
from  Hoertz  &  Son  when  injured.  Naturally  the  men  who  an- 
swered the  advertisement,  who  were  met  by  Hoertz  &  Son 
and  their  superintendent  and  hired,  and  who  saw  the  notices 
with  reference  to  the  Compensation  Law  posted,  would  enter 
upon  the  work  in  the  belief  that  they  were  the  employes  of 
Hoertz  &  Son  and  entitled  to  compensation  from  that  firm, 
if  injured  in  the  course  of  their  employment. 

The  Workmen's  Compensation  Law  provides  that  the  insur- 
ance carrier  shall  be  directly  liable  to  the  injured  workman 
or  his  dependents,  and  that  such  liability  may  be  enforced 
against  such  insurer.  It  also  provides  that  all  questions  aris- 
ing in  the  administration  of  the  Workmen's  Compensation 
Law  shall  be  determined  by  the  Industrial  Accident  Board. 
We  are  therefore,  of  the  opinion  that  the  Board  has  authority 
to  make  an  award  against  the  insurance  carrier,  as  was  done 
in  this  case. 

Award  affirmed. 


OPITZ  vs.  CHARLES  HOERTZ  &  SON,  ET  AL.  319 


PIETTERNELLA  VISSER, 
Applicant, 
vs. 
MICHIGAN  CABINET  COMPANY, 

Respondent. 

FRIGHT  OB  SHOCK — ABSENCE  OF  PHYSICAL  INJURY. 
Applicant's  decedent  was  loading  some  stock  on  an  elevator  when 
it  suddenly  started  up.  The  elevator  was  stopped  and  the  stock 
was  replaced  on  the  truck,  and  after  wheeling  it  about  40  feet 
applicant  fell  to  the  floor  and  expired  a  few  minutes  after  he  was 
picked  up.  A  post  mortem  examination  disclosed  that  he  was 
suffering  from  organic  disease  of  the  heart  and  it  was  the  opinion 
of  the  medical  witnesses  that  while  deceased  received  no  physical 
injury  the  shock  and  excitement  resulting  from  the  sudden  start- 
ing of  the  elevator  prohably  caused  his  death. 

HELD:  Where  death  or  disability  results  from  fright,  unaccom- 
panied by  any  immediate  physical  injury,  no  compensation  can  be 
had. 


Appeal  of  Pietternella  Visser  from  decision  of  an  arbitration 
committee  refusing  to  make  an  award  for  the  death  of  her 
husband.  Affirmed. 


Opinion  by  the  Board : 

Gerrit  Visser  was  working  in  the  employ  of  respondent  as  a 
lugger  in  its  factory  at  Grand  Rapids.  Part  of  his  duties  re- 
quired him  to  move  the  unfinished  stock  from  various  floors 
in  the  factory  to  the  lower  floor  by  use  of  a  truck,  and  in  pass- 
ing from  one  floor  to  the  other  a  large  elevator  was  used. 
On  November  26,  Visser  was  moving  a  truck  loaded  with 
drawers  from  the  second  floor  to  the  first  floor  of  respondent's 
factory.  He  wheeled  the  truck  load  on  to  the  elevator  at  the 
second  floor,  then  descended  with  the  elevator  to  the  first 
floor  and  proceeded  to  wheel  the  truck  from  the  elevator.  The 


320  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

elevator  started  upward  when  the  truck  was  partly  off,  causing 
it  to  tip  so  that  some  of  the  drawers  fell  off.  Other  employes 
of  the  respondent  stopped  the  elevator,  which  was  large  and 
slow  moving,  when  it  was  about  two  and  one-half  feet  above 
the  floor.  The  truck  was  then  adjusted  and  the  drawers  which 
had  fallen  off  were  replaced  by  Visser  and  another  employe. 
Visser  then  proceeded  to  wheel  the  truck  from  the  elevator 
shaft  to  another  portion  of  respondent's  factory,  and  after 
wheeling  it  about  forty  feet  he  fell  to  the  ground.  He  was 
picked  up  and  carried  into  the  office  and  died  a  few  minutes 
afterward.  A  post  mortem  examination  was  held  which 
showed  that  he  was  suffering  from  organic  disease  of  the 
heart.  While  he  received  no  physical  injury,  it  is  apparent 
that  the  nervous  shock  and  excitement  resulting  from  the  up- 
ward movement  of  the  elevator  affected  his  heart  in  its  dis- 
eased condition,  and  in  the  opinion  of  some  of  the  medical 
witnesses  probably  caused  his  death. 

The  case  presents  squarely  the  question,  whether  compensa- 
tion can  be  recovered  where  death  or  disability  results  from 
fright  unaccompanied  by  any  immediate  physical  injury.  Un- 
der the  authority  of 

Nelson  vs.  Crawford,  122  Michigan,  486,  and 
Schroeder  vs.  Railway  Company,  20  D.  L.  N.,  251 

recovery  could  not  be  had  in  such  cases.  The  case  of  Yates  vs. 
Collars,  Ltd.,  3  B.  W.  C.  C.,  419,  seems  to  establish  the  oppo- 
site rule  under  the  British  Workmen's  Compensation  Law. 
The  question  is  one  of  great  importance.  If  the  Compensa- 
tion Law  is  held  to  cover  cases  of  fright  or  nervous  shock  un- 
accompanied by  physical  injury,  it  will  bring  under  the  Com- 
pensation Law  a  large  class  of  cases  for  which  compensation 
by  wray  of  damages  has  heretofore  been  denied  in  Michigan. 
While  the  question  is  not  free  from  doubt,  we  are  of  the  opin- 
ion that  our  statute  was  not  intended  to  cover  the  ci-ass  of 
cases  above  mentioned.  We  also  think  that  it  is  desirable  to 
have  this  question  finally  settled  by  an  early  decision  of  the 


RIDER  vs.   THE  C.   H.   LITTLE  COMPANY.  321 

Supreme  Court.    The  decision  of  the  committee  on  arbitration 
is  affirmed. 


IACOB  RIDER, 

Applicant, 
vs. 

'HE  C.  H.  LITTLE  COMPANY, 
Respondents. 


TEAMSTER   NOT   REGULARLY   EMPLOYED — OWNER  OF   TEAM   AND 
WAGON. 

The  applicant  was  the  owner  of  a  team  and  wagon,  and  was  en- 
gaged in  hauling  dirt  for  respondent,  receiving  for  the  work  of 
himself,  team  and  wagon  $6  per  day.  While  so  engaged  he  re- 
ceived injuries  to  two  fingers  by  which  he  was  totally  disabled 
for  2y2  months,  and  which  resulted  further  in  causing  a  per- 
manent stiffness  by  reason  of  which  the  applicant  has  only 
partial  use  of  such  fingers.  An  arbitration  committee  awarded 
the  applicant  compensation  for  43  weeks  at  50%  of  his  average 
weekly  wage.  Respondent's  contention  is  that  Rider  was  not 
their  employe  within  the  meaning  of  the  act  and  that  the  award 
of  compensation  was  excessive. 

HELD:  1.  The  fact  that  the  applicant  worked  under  orders  of 
respondent's  foreman,  and  was  required  to  conform  in  detail  to 
the  regulations  and  system  of  work  of  defendant  was  sufficient 
to  make  him  an  employe  of  defendant  within  the  meaning  of 
the  compensation  law. 

2.     The    fact    that    applicant    was    totally    disabled    for    2^ 
months,  and  that  the  injury  resulted  in  a  partial  loss  of  the 
use  of  his  fingers,  which  condition  was  permanent,  is  such  as 
to  make  the  compensation  award  a  reasonable  one. 
41 


322  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Opinion  by  the  Board: 

The  applicant,  Jacob  Rider,  was  the  owner  of  a  team  and 
wagon,  and  had  been  engaged  in  the  general  teaming  business 
in  Detroit  for  a  number  of  years  prior  to  his  injury.  He  had 
worked  on  and  off  with  his  team  for  respondent  during  a  per- 
iod of  about  six  years.  He  had  been  working  steadily  for  res- 
pondent for  about  seven  weeks  prior  to  his  injury,  which  oc- 
curred on  November  7th,  and  was  receiving  $6.00  per  day  for 
himself,  his  team  and  wagon.  The  work  in  which  he  was  en- 
gaged was  hauling  dirt  for  respondent.  There  were  from 
twelve  to  fifteen  teams  engaged  in  the  same  work,  and  the 
wagons  were  loaded  with  a  mechanical  device  called  a  "clam" 
which  was  operated  in  practically  the  same  way  as  a  steam 
shovel.  The  clam  would  be  let  down  and  filled  with  dirt  and 
closed  by  the  machinery.  It  would  then  be  raised  and  swung 
around  over  the  wagon  which  was  to  be  loaded.  The  teamster 
would  steady  the  clam  so  as  to  be  over  the  portion  of  the 
wagon  that  needed  filling,  and  the  operator  of  the  machine 
would  then  cause  it  to  open  and  drop  the  dirt  in  the  wagon. 
The  injury  in  this  case  was  caused  by  the  clam  closing  on  Mr. 
Eider's  fingers  after  the  dirt  had  dropped  in  the  manner  above 
indicated.  The  first  and  second  fingers  were  badly  broken 
and  lacerated.  Defendant  wras  totally  disabled  from  work  by 
the  injury  for  two  and  one-half  months,  and  the  injured  fingers 
have  become  stiff  and  have  lost  to  a  large  degree  their  power 
of  closing  and  their  usefulness.  The  committee  on  arbitra- 
tion awarded  the  applicant  compensation  for  forty-three  weeks 
at  fifty  per  cent  of  his  average  weekly  wages.  This  decision 
is  appealed  from  by  the  respondent  upon  the  following 
grounds : 

1.  That  Rider  was  not  an  employe  of  respondent  within 
the  meaning  of  the  compensation  law. 

2.  That  the  award  of  compensation  is  excessive.  It  appears 
from  the  evidence  that  Rider  was  licensed  as  a  teamster  in  the 
city  of  Detroit,  and  that  he  engaged  in  doing  such  various  jobs 
of  teaming  and  transfer  work  as  he  could  get  to  do  from  time 


RIDER  vs.  THE  C.  H.  LITTLE  COMPANY.  323 

to  time.  It  is  also  shown  that  he  was  required  to  have  a 
license  under  the  city  ordinance,  and  that  such  licenses  are  re- 
quired of  teamsters  except  in  some  instances  where  firms  like 
respondent  use  their  own  teams  and  teamsters  in  their  bus- 
iness, and  have  their  names  printed  on  their  wagons.  It  also 
appears  that  Elder  worked  for  respondent  from  time  to  time 
during  the  past  six  years,  and  that  he  worked  for  respondent 
steadily  with  his  team  and  wagon  from  about  the  14th  of  Sep- 
tember until  the  date  of  the  injury,  doing  the  same  work  as 
the  other  teamsters  of  respondent,  and  doing  no  other  work 
with  his  team  and  wagon  during  that  time.  He  was  hired  for 
$6.00  a  day.  It  is  undisputed  that  the  regular  wages  of  a 
teamster  for  that  class  of  work  is  $2.50  a  day  and  the  regular 
wage  for  a  team  and  wagon  $3.50  a  day,  and  Mr.  Kider  claims 
that  he  was  employed  at  $2.50  a  day  for  himself  and  $3.50  for 
his  team  and  wagon.  He  worked  under  the  orders  of  respond- 
ent's foreman,  who  directed  him  how  to  do  the  work,  where  to 
go,  how  to  make  deliveries,  and  required  Rider  to  conform  to 
all  of  the  regulations  as  to  the  wrork  done  and  the  manner  and 
system  of  doing  it  and  was  required  of  the  other  teamsters 
of  respondent.  It  clearly  appears  that  respondent  through 
its  foreman  kept  a  close  supervision  over  the  work  and  move- 
ments of  Mr.  Rider  and  directed  and  controlled  the  same  in 
every  particular.  In  the  opinion  of  the  Board,  Mr.  Rider  was 
an  employe  of  respondent  within  the  meaning  of  the  compen- 
sation law  at  the  time  he  was  injured,  and  the  fact  that  his 
team  and  wagon  was  also  employed  in  the  work  did  not  make 
him  a  contractor  nor  in  any  way  change  his  status  as  such 
employe. 

The  fact  that  he  wras  totally  disabled  for  two  and  one-half 
months  is  undisputed,  and  the  fact  that  the  first  and  second 
fingers  of  his  hand  are  permanently  injured  is  also  undisputed 
in  the  case.  In  the  opinion  of  the  board  it  is  fairly  shown  that 
the  injury  (wrhich  is  permanent  in  its  character)  to  appli- 
cant's first  and  second  fingers  has  caused  a  loss  to  him  of  one- 
half  of  the  use  of  such  fingers.  The  board  has  held  in  other 
cases  that  where  the  use  of  a  finger  is  destroyed  by  an  injury, 


324  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

that  it  is  equivalent  to  the  loss  of  such  finger  whether  the 
same  is  amputated  or  not.  That  the  real  test  is  not  the  ac- 
tion or  non-action  of  the  surgeon  as  to  cutting  off  the  finger, 
but  it  is  whether  the  injured  person  has  been  deprived  perma- 
nently of  the  use  of  such  finger  even  though  it  was  not  am- 
putated. Upon  the  same  principal  an  injury  which  destroys 
one-half  of  the  beneficial  use  of  a  finger  should  be  rated  as 
the  loss  of  a  half  finger,  and  if  that  rule  is  applied  in  the  pres- 
ent case  the  award  of  forty-three  weeks'  compensation  will  be 
correct.  Substantially  the  same  result  would  be  reached,  we 
think,  by  treating  the  permanent  injury  to  the  fingers  as  a 
permanent  partial  disability.  The  award  of  the  committee  on 
arbitration  is  affirmed. 


X.  B.  KONKEL, 

Applicant, 
vs. 
FORD  MOTOR  COMPANY, 

Respondent. 

BURIAL  EXPENSES — CONTRACT  FUNERAL. 

An  employe  of  respondent  was  killed  while  at  work  and  left  no  de- 
pendents. In  accordance  with  Sec.  8,  Part  II,  of  the  compensa- 
tion law,  respondent  was  liable  for  the  funeral  expenses  not  ex- 
ceeding $200.  Respondent  made  a  contract  with  an  undertaker, 
the  applicant,  to  furnish  and  conduct  the  funeral  for  $75,  and 
further  agreed  to  pay  $15  for  the  cemetery  lot.  Applicant  pre- 
sented a  bill  for  $104,  stating  that  the  extra  $14  was  for  three 
carriages  furnished  for  friends  of  the  deceased  who  attended  the 
funeral.  Respondent  refused  to  pay  the  extra  $14,  claiming  that 
it  was  an  overcharge  and  that  the  agreement  practically  ex- 
cluded carriages. 


KONKEL  vs.  FORD  MOTOR  COMPANY.  325 

HELD:  1.  That  the  right  to  the  custody  and  burial  of  the  dead 
belongs  to  the  family,  next  of  kin,  near  relatives  and  friends  of 
the  deceased,  and  that  the  compensation  law  does  not  assume  to 
take  away  or  interfere  with  this  important  right. 

2.  That  the  employer  has  no  authority  to  contract  for  funerals 
with  an  undertaker  in  such  a  way  as  to  arbitrarily  fix  the  num- 
ber of  carriages  or  to  decide  in  certain  cases  that  no  carriages 
shall  be  provided.  These  are  matters  for  the  family  or  next  of 
kin  to  decide  and  arrange  for,  provided  the  expense  is  reasonable 
and  does  not  exceed  the  limit  fixed  by  law. 


Appeal  of  X.  B.  Konkel  to  compel  the  Ford  Motor  Company 
to  pay  his  claim  for  funeral  expenses  incurred  in  the  burial  of 
one  of  respondent's  employes. 


Opinion  by  the  Board : 

This  case  involves  the  question  of  funeral  expenses,  the  de- 
ceased workman,  John  Ovczieneko,  having  left  no  dependents. 
Section  8,  Part  II,  of  the  act  provides  that  in  cases  where  the 
employe  leaves  no  dependents,  the  employer  shall  pay  or  cause 
to  be  paid  the  reasonable  expenses  of  his  last  sickness  and 
burying,  which  shall  not  exceed  $200.  It  is  claimed  by  res- 
pondent that  it  entered  into  a  contract  with  the  undertaker, 
X.  B.  Konkel,  to  furnish  and  conduct  the  funeral  of  deceased 
for  f 75,  the  respondent  to  pay  in  addition  thereto  the  cost  of 
the  cemetery  lot,  which  was  $15.  After  the  funeral  was  had 
the- claimant  presented  a  bill  to  respondent  for  $104,  being  $15 
for  the  cemetery  lot  and  $89  for  the  funeral.  The  precise  claim 
of  respondent  is  that  the  claimant  had  made  an  overcharge  of 
$14,  claiming  $89  for  the  funeral  when  the  agreed  amount  was 
$75.  The  claimant  admits  that  the  price  agreed  upon  for  the 
funeral  was  $75,  but  claims  that  the  relatives  and  friends  of 
the  deceased  wThen  the  funeral  came  on  required  him  to  fur- 
nish three  additional  hacks  and  that  the  $14  additional  charge 
is  for  those  hacks,  which  were  actually  furnished  and  used  at 
the  funeral.  The  only  -relative  of  the  deceased  who  resided 


323  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

here  and  attended  the  funeral  was  a  brother,  but  many  friends 
and  acquaintances  of  the  deceased  attended,  and  some  of  them 
rode  in  the  three  hacks  to  the  cemetery.  The  agreement  be- 
tween the  claimant  and  respondent  with  reference  to  the  fu- 
neral practically  excluded  hacks,  the  precise  contention  of  res- 
pondent being  stated  as  follows :  "The  deceased  had  absolutely 
no  family  nor  friends  in  this  country,  outside  of  his  brother, 
and  this  company  will  not  pay  for  pleasure  carriages  for  fu- 
neral purposes  and  if  people  desire  to  go  for  a  ride  or  an  un- 
dertaker desires  his  friends  to  go  for  a  ride,  they  must  pay 
for  their  carriages.  *  *  *  That  after  an  absolute  contract 
was  made  the  undertaker  should  not  go  ahead  and  incur  ad- 
ditional expenses." 

It  will  be  seen  that  this  case  involves  the  fundamental  ques- 
tion, has  the  employer  the  right  to  order  and  contract  for  the 
funeral  in  cases  of  this  kind,  and  can  he  limit  the  item  of  ex- 
pense and  the  character  of  the  funeral.  If  he  has  this  power 
then  the  contract  entered  into  with  claimant  would  be  con- 
trolling and  the  additional  expense  incurred  for  carriages 
would  be  unauthorized.  The  Board,  however,  is  clearly  of  the 
opinion  that  the  employer  has  no  such  power.  The  right  to 
the  custody  and  burial  of  the  dead  belongs  to  the  family,  to 
the  next  of  kin,  to  the  near  relatives  and  friends.  The  right 
is  inherent  and  universally  recognized.  They  may  make  the 
funeral  as  to  form,  rites,  procession  and  burial  whatsoever 
their  sentiment,  judgment  and  traditions  dictate.  The  com- 
pensation law  does  not  assume  to  take  away  or  in  any  manner 
interfere  with  this  important  right  of  the  family  and  relatives 
of  the  workman  in  death  cases  like  this.  The  law  merely  pro- 
vides that  the  employer  shall  pay  the  expense,  or  cause  it  to 
be  paid,  and  that  the  amount  of  his  liability  for  such  expense 
shall  not  exceed  |200.  It  does  not  give  him  the  right  to  con- 
tract with  the  undertaker,  or  even  to  select  the  undertaker. 
Much  less  does  it  give  him  the  right  to  arbitrarily  fix  the  num- 
ber of  carriages,  or  to  decide  that  in  certain  cases  no  carriages 
shall  be  provided.  These  are  matters  for  the  family  and  next 
of  kin  to  decide  and  provide  for,  and 'if  the  expense  is  reason- 


JANKOWSKI  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  327 

able  and  does  not  exceed  the  limit  fixed  by  law,  it  should  be 
paid  by  the  employer.  In  this  case  the  extra  hacks  were  or- 
dered by  the  next  of  kin  and  friends  of  deceased,  and  were 
used  to  convey  his  friends  to  the  place  of  burial.  In  the  opin- 
ion of  the  Board  they  were  reasonably  necessary,  and  the  bill 
of  claimant  for  f  104  is  allowed  and  ordered  paid. 


TOHN  JANKOWSKI, 

Applicant, 
vs. 
3IERICAN  CAR  &  FOUNDRY  COMPANY, 

Respondent. 

[NTENTIONAL  AND  WILFUL  MISCONDUCT. 

The  applicant  was  working  under  a  car  in  the  process  of  con- 
struction in  such  a  position  that  he.  would  be  seriously  injured  by 
the  moving  of  the  car  while  so  engaged.  The  usual  signals  pre- 
ceding such  movement  were  given  and  applicant  had  been  in- 
structed in  the  same. 

HELD:  That  the  failure  of  the  applicant  through  inattention,  lack 
of  mental  alertness  or  on  account  of  the  noise,  to  hear  and 
comprehend  the  signals  did  not  under  the  facts  in  this  case, 
constitute  intentional  and  wilful  misconduct. 


Opinion  by  the  Board: 

The  applicant,  John  Jankowski,  was  severely  injured  in  one 
)f  the  factories  of  respondent  in  Detroit,  by  the  moving  of  a 
*ar  under  which  he  was  working.  He  was  employed  as  a 
"sweeper"  in  respondent's  factory  which  is  known  as  the 


328  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

•'Peninsular  Department,"  where  the  respondent  was  engaged 
in  the  construction  of  cars  of  various  types.  He  was  working 
in  a  large  room  on  the  floor  of  which  there  are  approximately 
16  railroad  tracks  which  are  used  for  cars  in  the  process  of 
construction.  From  time  to  time  as  different  parts  of  the  con- 
struction work  are  finished,  the  cars  are  moved  along  the 
tracks  to  other  parts  of  respondent's  plant.  Applicant's  duties 
were  to  maintain  order  throughout  the  shop  by  sweeping  and 
picking  up  rubbish  from  the  floor  and  also  from  under  the 
cars.  Shortly  before  he  was  injured,  he  went  under  one  of  a 
string  of  three  cars  to  clean  up,  that  is,  to  pick  up  some  pieces 
of  wood  and  iron  from  the  floor.  Work  was  being  done  at 
that  time  by  carpenters  and  others  upon  these  cars  and  also 
upon  the  cars  on  an  adjoining  track,  the  men  using  heavy 
hammers  in  their  work  and  making  considerable  noise. 

There  were  certain  rules  promulgated  by  respondent's  fore- 
man in  charge  of  the  train  under  which  applicant  was  injured. 
One  of  these  rules  provided  for  the  blowing  of  certain  warning 
whistles  before  moving  the  cars  along  the  track.  The  fore- 
man in  his  testimony  states  the  rule,  as  follows: 

"I  just  blow  once  and  then  I  look  around  and  see  if  everything  is 
clear;  "then  blow  twice  and  wait  a  few  seconds  and  then  blow  three 
times;  that  is  the  last,  for  the  men  all  know  when  the  third  whistle 
comes  the  car  is  going  to  be  pulled  in  a  very  short  time.  I  have 
no  fixed  time  between  whistles.  Most  of  the  time  there  is  between 
three  and  five  minutes  between  first  whistle  and  the  next  two  whistles; 
I  never  take  out  my  watch." 

The  rule  as  established  and  understood  by  the  men  was 
that  all  persons  working  inside  or  around  the  cars  should  get 
out  of  danger  upon  the  sounding  of  the  first  whistle,  and  it 
was  so  understood  by  the  applicant.  No  printed  or  written 
rule  to  this  effect  was  posted  in  the  factory,  but  the  rule  was 
communicated  to  the  men  by  the  foreman  working  in  and 
about  the  cars.  There  is  a  whistle  for  each  track,  and  the  one 
in  use  in  connection  with  the  track  on  which  applicant  Vas 
injured  was  strong  enough  to  be  heard  for  some  distance  be- 
yond the  limits  of  the  room  in  which  the  work  was  being  done, 


JANKOWSKI  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  329 

and  at  the  time  the  signals  were  given  for  the  movement  of 
the  cars  in  question  no  other  whistle  was  being  blown.  While 
there  was  considerable  noise  in  the  room  from  the  general 
occupation,  it  was  not  enough  to  prevent  one  from  hearing 
and  understanding  the  signals.  A  few  minutes  before  the 
accident  applicant  went  under  one  of  the  string  of  cars  above 
referred  to  at  a  point  about  60  feet!  from  where  the  whistle 
was  located,  and  with  a  broom  and  keg  was  engaged  in  pick- 
ing up  pieces  or  iron  and  wood  which  had  dropped  under  the 
car  in  the  course  of  the  construction  work.  Before  the  cars 
were  moved,  the  usual  whistle  signals  were  given.  Appli- 
cant's hearing  was  normal.  He  remained  under  the  car  and 
was  seriously  injured  when  it  wras  moved.  The  signals  that 
the  cars  were  about  to  be  moved  were  in  fact  given  by  blow- 
ing the  whistles  according  to  rule,  and  the  applicant  was  fam- 
iliar with  and  instructed  in  such  signals.  It  is  claimed  that 
his  failure  to  heed  the  signals  and  promptly  go  to  a  place  of 
safety  before  the  cars  wrere  moved  constituted  intentional  and 
wilful  misconduct  within  the  meaning  of  the  law. 

In  the  opinion  of  the  Board  this  contention  cannot  be  sus- 
tained. Through  inattention,  lack  of  mental  alertness,  or  on 
account  of  the  noise,  or  for  some  other  reason,  applicant 
failed  to  hear  and  comprehend  such  signals,  in  the  sense  that 
said  signals  did  not  convey  to  his  mind  on  the  occa- 
sion in  question  a  realization  of  the  fact  that  the  car 
under  which  he  was  working  was  about  to  be  started.  An 
alert,  careful  man  in  the  position  occupied  by  applicant  would 
have  heard  and  understood  the  signals,  but  under  the  facts 
and  conditions  in  this  case  where  applicant  must  have  known 
that  serious  injury  would  result  to  him  from  the  moving  of 
the  car  while  he  was  so  working  under  it,  the  Board  cannot 
believe  and  therefore  cannot  find  that  applicant  heard  and 
understood  the  signals  in  the  sense  above  stated. 


330  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SAMUEL  J.  MALZAC, 

Applicant, 
vs. 
BRULE  TIMBER  COMPANY, 

and 

AETNA  LIFE  INSURANCE  COMPANY, 
Respondents. 

DEPENDENTS — PARENT  AND  CHILD. 

The  applicant,  a  minor  whose  parents  had  separated,  was  living 
with  his  grandparents  and  being  supported  by  them  at  the  time 
of  his  father's  death.  The  father  was  not  contributing  to  his 
son's  support  or  maintenance  except  that  he  provided  for  him 
clothing,  some  life  insurance,  and  at  times  assisted  the  grand- 
parents on  the  farm.  On  the  death  of  the  father  as  a  result 
of  an  accident  while  in  the  employ  of  respondent,  the  child  ap- 
plies through  his  guardian  for  compensation  as  a  dependent  under 
the  statute. 

HELD:  1.  That  the  law  does  not  limit  dependency  of  minor  chil- 
dren to  cases  where  actual  support  was  being  furnished  or  con- 
tributions made,  as  such  a  rule  would  in  many  instances  exclude 
children  from  the  benefits  of  a'  law  that  was  clearly  intended  for 
their  protection. 

2.  Where  there  is  a  direct  legal  obligation  to  support,  as  in 
the  case  of  a  father  to  his  minor  children,  coupled  with  the 
reasonable  probability  of  such  obligation  being  fulfilled,  depen- 
dency is  established  even  though  no  support  was  in  fact  being 
furnished  at  the  time  of  the  workman's  death. 


Application  by  Samuel  J.  Malzac  for  compensation  for  the 
death  of  his  father,  as  a  dependent  within  the  meaning  of  the 
Workmen's  Compensation  Law.  Granted. 


Opinion  by  the  Board : 

Samuel  Malzac,  the  father  of  applicant,  while  working  as  a 
teamster  for  defendant  Lumber  Company,  was  instantly  killed 


MALZAC   vs.   BRULE   TIMBER   CO.  331 

by  the  fall  of  a  gin-pole  used  in  skidding  logs.  It  is  conceded 
that  his  wages  amounted  to  |50  per  month  and  that  the  acci- 
dent arose  out  of  and  in  the  course*  of  the  employment.  The 
remaining  facts  are  stipulated  by  the  parties  as  follows: 

"Deceased  left  surviving  him  a  wife,  Blanche  Malzac,  with  whom  he 
had  not  lived  since  September,  1912,  and  to  whose  support  he  did 
not  contribute  since  that  date,  and  said  wife  makes  no  claim  for 
compensation." 

The  stipulated  facts  then  proceed  as  follows: 

"Deceased  also  left  surviving  him  a  minor  son,  Samuel  Malzac,  Jr., 
who  was  born  December  25th,  1909,  but  said  minor  son,  when  about 
4  or  5  months  old,  was  left  with  Alphonse  Malzac,  his  grandfather, 
and  has  since  that  time  been  making  his  home  with  said  Alphonse 
Malzac;  that  the  father,  the  deceased,  has  not  in  any  way  contributed 
to  the  support  or  maintenance  of  Samuel  Malzac,  Jr.,  since  this 
minor  son  went  to  the  home  of  his  grandfather,  excepting  that  dur- 
ing the  summer  of  1913,  deceased  bought  a  complete  outfit  of  clothing 
for  his  son,  worth  approximately  $9.00;  excepting  that  during  the 
months  of  March  and  April,  1911,  said  Samuel  Malzac,  deceased,  and 
Blanche  Malzac,  his  wife,  lived  together  for  a  period  of  four  or  five 
weeks,  during  which  time  said  Samuel  Malzac  supported  and  cared 
for  said  child,  and  that  again  in  the  months  of  August  and  September, 
1912,  said  Samuel  Malzac  and  said  Blanche  Malzac,  his  wife,  lived 
together  for  a  period  of  four  or  five  weeks,  and  during  said  time  the 
said  Malzac  supported  and  cared  for  said  child.  That  deceased  did 
not  in  any  way  pay  any  money  to  Alphonse  Malzac,  for  the  support 
or  maintenance  of  his  son.  That  deceased  carried  a  life  insurance 
policy  for  $1,000  in  the  Brotherhood  of  American  Yeoman,  the  bene- 
ficiaries as  named  therein  were  Lucy  Malzac,  his  mother,  and  Samuel 
Malzac,  Jr.,  his  son,  each  to  receive  one-half  of  said  $1,000  at  de- 
ceased's death.  That  the  grandfather,  Alphonse  Malzac,  caused  to  be 
issued  a  life  insurance  policy  in  the  Metropolitan  Life  Insurance  Com- 
pany, Policy  No.  48107514,  premium  10  cents  per  week,  beneficiary 
named  therein  being  Alphonse  Malzac,  grandfather,  said  policy  being 
on  the  life  of  Samuel  Malzac,  Jr.  That  at  the  time  said  policy  was 
issued,  Samuel  Malzac,  deceased,  signed  a  paper  authorizing  the 
Metropolitan  Life  Insurance  Company  to  issue  the  said  policy  to  said 
Alphonse  Malzac,  as  beneficiary.  That  at  said  time  said  Alphonse 
Malzac  attempted  to  adopt  said  Samuel  Malzac,  Jr.,  but  said  adoption 
proceedings  were  not  completed.  That  deceased  at  various  times, 
when  out  of  work,  would  make  his  home  with  Alphonse  Malzac,  his 
father,  but  at  said  times  would  not  in  any  way  contribute  to  the  sup- 


332  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

port  of  his  minor  son,  nor  would  he  pay  anything  to  his  father, 
Alphonse  Malzac,  except  by  assisting  a  little  around  the  small  farm 
owned  by  said  Alphonse  Malzac.  Therefore  the  only  question  in  dis- 
pute is  as  to  whether  or  not  Samuel  Malzac,  Jr.,  is  a  dependent, 
under  the  terms  of  the  Michigan  Workmen's  Compensation  Law,  here- 
in described."  The  accident  in  question  happened  on  December  13, 
1913. 


It  is  contended  by  respondents  that  no  dependency  is  shown 
in  this  case  and  therefore  no  compensation  is  payable,  the 
contention  being  based  upon  the  claim  "that  no  contributions 
were  being  in  fact  made  by  the  father  for  the  support  of  ap- 
plicant at  or  immediately  prior  to  the  time  of  his  death.  It 
is  contended  on  behalf  of  the  applicant  that  he  is  wholly  de- 
pendent. 

This  squarely  presents  for  determination  the  question  of 
the  application  of  the  Workmen's  Compensation  Law  in  cases 
of  minor  children  who  do  not  fall  within  the  class  covered  by 
the  conclusive  presumption  of  dependency,  when  the  father 
or  other  parent  is  taken  away  by  an  industrial  accident. 
Where  the  father  is  entirely  supporting  such  child  or  chil- 
dren, or  has  been  making  material  contributions  for  their  sup- 
port, little  difficulty  is  experienced  in  applying  the  law.  How- 
ever, many  cases  arise  where  by  reason  of  moving,  financial 
difficulties,  changes  in  families,  or  any  of  the  numerous  ar- 
rangements under  which  chidren  are  cared  for  by  relatives, 
friends  or  organizations,  dependency  cannot  be  determined  on 
the  basis  of  past  contributions  and  support  furnished  by  the 
deceased  parent,  as  no  such  basis  exists.  It  seems  clear  that 
the  law  does  not  intend  to  limit  dependency  of  minor  chil- 
dren to  cases  where  actual  support  was  being  furnished  or 
contributions  made,  as  such  a  rule  would  in  many  instances 
leave  infant  and  posthumus  children  outside  of  the  benefits 
of  the  law,  which  was  clearly  intended  for  their  protection. 
The  English  courts,  including  the  House  of  Lords,  have  es- 
tablished the  rule  that  posthumus  children  are  dependents 
within  the  meaning  of  Ihe  I'ritish  Act,  which  in  this  respect 
is  substantially  the  same  as  ours,  holding  that  a  reasonable 


MALZAC   vs.   BRULE   TIMBER   CO.  333 

anticipation  that  the  children  would  be  maintained  is  a  suffi- 
cient basis.  Orrell  Colliery  Company  ys.  Schotield,  2  B.  \V. 
C.  C.  295. 

From  a  careful  examination  of  the  authorities  it  seems 
clear  that  the  word  "dependent"  is  used  in  Workmen's  Com- 
pensation Laws  to  describe  or  designate  a  state  or  condition 
of  the  person  referred  to,  haying  regard  to  his  class  and  posi- 
tion, and  not  one  who  merely  derived  a  benefit  from  the  earn- 
ings of  the  deceased  workman.  Boyd's  Workmen's  Compensa- 
tion, 490 ;  Lloyd  v.  Powell  Coal  Co.,  7  B.  W.  C.  C.,  333.  The 
confusion  on  this  point  that  seems  to  haye  arisen  in  connec- 
tion with  the  case  of  New  Monckton  Collieries,  Ltd.  v.  Keeling, 
4  B.  W.  C.  C.,  332,  is  in  the  judgment  of  the  Board  cleared  up 
by  the  case  of  Young  v.  Niddrie  &  Benhar  Coal  Company, 
Ltd.,  G  P>.  W.  C.  C.  782,  the  latter  case  being  decided  by  the 
House  of  Lords  in  July,  1913,  some  two  years  after  the  decis- 
ion in  the  Keeling  case.  The  Keeling  case  is  referred  to  in 
some  of  the  text  books  as  "the  great  case  *  *  that  finally 
settles  the  law  on  the  whole  subject."  Bradbury's  Workmen's 
Compensation  Law,  573.  The  conclusion  there  reached  by  the 
House  of  Lords  that  the  dependency  of  the  wife,  who  was  not 
being  supported  by  her  husband,  was  not  established  by  the 
mere  fact  of  the  existence  of  a  legal  obligation  to  support,  is 
made  prominent.  The  Young  case  above  cited  distinguishes 
the  Keeling  Oa-se  and  supplements  it  particularly  with  refer- 
ence to  minor  children.  In  the  Young  case,  it  was  contended 
that  the  true  question  is  "Was  the  applicant  actually  receiv- 
ing support  from  one  who  was  under  an  obligation  to  give 
support,  and  who  was  also  the  servant  of  the  master  whom  it 
is  proposed  to  make  liable  in  compensation?"  As  to  this 
proposition  the  Court  say: 

"I  cannot  agree  with  this  view  of  the  true  question.  I  agree  that 
a  mere  legal  right  may  not,  in  certain  circumstances,  be  sufficient. 
*  *  The  true  question  in  the  present  case  is,  in  my  opinion,  whether 
there  was,  as  one  of  the  facts  to  be  taken  into  account,  an  effective  and 
valuable  legal  right.  If  there  was  such  a  right,  and  there  was  no 
legal  difficulty  in  the  way  of  enforcing  it,  then  the  mere  fact  that  a 
want  of  opportunity  to  resort  to  it,  which  might  have  proved  only 


334  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

temporary,  had  reduced  the  mother  and  children  for  the  time  to  liv- 
ing on  charity,  cannot  affect  the  conclusion  that  by  the  father's  death 
they  lost  something  on  which  they  could  depend.  *  *  I  am  of  the 
opinion  that  these  children  were  wholly  dependent.  They  had  the 
right  to  look  to  their  father  for  maintenance.  *  *  It  was  only  by 
assistance  from  their  brothers,  assistance  which  might  have  ceased  at 
any  moment,  that  they  were  saved  from  actual  want." 

Again  in  the  same  case,  Page  782,  it  is  said: 

"There  may  be  cases  in  which  the  husband's  legal  obligation  to 
•support  his  wife  may  be  held  to  be  suspended,  but  when  that  legal 
obligation,  not  discharged  by  the  husband,  concurs  with  total  destitu- 
tion on  the  part  of  the  wife  and  inability  to  support  herself,  the 
bare  fact  that  at  the  date  of  his  death  the  husband  was  not  imple- 
menting his  obligation  is  not  sufficient  to  prevent  us  from  holding 
that  the  wife  was  wholly  dependent  on  him.  Neither,  in  my  opinion, 
is  the  question  affected  by  the  fact  that  during  the  husband's  ab- 
sence and  neglect  the  wife  was  kept  from  starvation  by  the  casual 
charity  of  strangers,  or  even  relatives." 

The  rule  laid  down  in  the  Young  case  may  be  fairly  sum- 
med up  as  holding  that  where  there  is  a  direct  legal  obliga- 
tion to  support,  as  in  the  case  of  a  father  to  his  minor  chil- 
dren, coupled  with  the  reasonable  probability  of  such  obliga- 
tion being  fulfilled  by  furnishing  such  support  either  volun- 
tarily or  involuntarily,  dependency  is  established,  even  though 
no  actual  contributions  or  support  were  in  fact  being  fur- 
nished prior  to  the  death  of  the  workman.  This  is  not  in  con- 
flict with  the  case  of  Pinel  v.  Eapid  Railway  System,  184 
Mich.,  169,  as  in  that  case  the  obligation  of  the  deceased  to 
support  the  applicant,  who  was  his  mother,  was  indirect,  and 
did  not  in  fact  become  a  legal  obligation  until  made  so  by 
proper  legal  proceedings.  On  the  other  hand,  the  obligation 
of  a  father  to  support  his  children  is  direct  and  immediate. 
The  rule  is  also  in  harmony  with  the  case  of  Ingersoll  v.  De- 
troit &  Mackinac  Kailway  Co.,  163  Mich.,  268.  In  the  latter 
case,  suit  was  brought  for  a  wife  and  infant  child  who  were 
residing  in  another  state  and  receiving  no  contributions  or 
support  from  the  deceased  workman.  The  trial  court  directed 
a  verdict  for  defendant  on  the  ground  that  there  was  no  de- 


MALZAC   vs.   BRULE   TIMBER   CO.  335 

pendency  and  plaintiffs  suffered  no  pecuniary  loss  by  the 
death.  The  Supreme  Court,  in  a  well  considered  opinion  cit- 
ing many  authorities,  reversed  the  judgment,  holding  that  the 
legal  right  to  support  coupled  with  a  reasonable  probability 
of  receiving  it  was  sufficient  to  establish  plaintiff's  case,  and 
that  the  wife  and  child  could  recover  for  the  contributions, 
voluntary  or  forced,  that  .would  probably  have  been  made  by 
deceased  in  their  favor. 

In  the  case  at  bar,  it  is  apparent  that  the  wife  had  separated 
from  the  husband  under  such  circumstances  as  to  exclude  any 
claim  by  her,  and  that  no  support  or  contributions  from  her 
could  be  expected  by  the  applicant.  On  the  other  hand,  the 
applicant's  father  up  to  the  time  of  his  death  provided  cloth- 
ing for  his  son,  also  life  insurance,  and  assisted  the  grand- 
rents  on  the  farm.  Apparently  the  grandparents  were  en- 
irely  willing  to  support  the  applicant,  and  we  think  it  fairly 
appears  that  had  it  been  otherwise  the  father  would  not  have 
permitted  him  to  want.  While  the  father  lived  the  probabil- 
ity of  furnishing  support  together  with  the  legal  obligation 
so  to  do  would  continue,  and  upon  this  the  applicant  had  a 
right  to  depend.  By  the  father's  death  this  guaranty  of  sup- 
port is  taken  away,  and  the  support  that  was  being  furnished 
by  the  grandparents  might  be  withdrawn  at  any  moment.  We 
think  under  the- facts  and  authorities  that  the  applicant  was 
wholly  dependent.  He  had  a  right  to  look  to  his  father  for 
support,  and  the  probability  of  receiving  it,  in  the  judgment 
of  the  Board,  was  so  strong  as  to  amount  almost  to  a  cer- 
tainty. The  theory  that  this  four  year  old  child  cannot  be 
considered  a  dependent  under  the  law  when  his  father  is  taken 
away  by  an  industrial  accident,  on  account  of  the  fact  that 
he  was  being  supported  by  his  grandparents,  such  support  be- 
ing voluntary  and  perhaps  temporary,  is  unsound  in  the  judg- 
ment of  the  Board  and  must  be  rejected.  While  the  fact  of 
support  being  actually  furnished  by  the  deceased  workman 
prior  to  his  death  is  an  important  circumstance  bearing  upon 
the  question  of  dependency,  it  is  not  controlling.  Such  cir- 
cumstance does  not  create  the  dependency  in  cases  of  this 


336  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

kind,  but  is  merely  an  element  tending  to  show  that  a  state 
of  dependency  in  fact  existed. 


KEYES-DAVIS   COMPANY, 

.Applicant, 
vs. 
LEE  E.  ALDERDYCE, 

Respondent. 

LIABILITY  FOR  ACCIDENT  OCCURRING  OUTSIDE  OF  THE  STATE. 
Respondent  was  employed  as  a  traveling  salesman  by  applicant,  and 
was  injured  in  Buffalo,  N.  Y.,  while  in  the  active   discharge  of 
his   duties. 

HELD:  That  respondent  is  not  entitled  to  compensation,  on  the 
ground  that  the  provisions  of  the  compensation  law  do  not  cover 
accidents  occurring  outside  of  the  state  of  Michigan,  even  though 
both  parties  are  residents  of  this  state. 


Application  of  Keyes-Davis  Company  for  ruling  on  question 
of  injury  occurring  in  another  state.  Both  parties  stipulated 
the  facts  and  waived  arbitration  proceedings  and  case  was 
heard  by  full  Board. 


Opinion  by  the  Board : 

The  applicant  and  respondent  are  both  residents  of  Battle 
Creek,  Michigan.  The  respondent  was  in  the  employ  of  the 
applicant  as  a  traveling  salesman,  and  was  injured  at  Buffalo, 
New  York,  by  a  fall  received  in  the  office  of  the  Larkin  Com- 


KEYES-DAVIS    COMPANY    vs.    ALDERDYCE.  337 

pany,  where  he  was  on  the  business  of  his  employer.  The  sole 
question  involved  in  this  case  is  whether  the  Michigan  Work- 
men's Compensation  Law  is  operative  beyond  the  boundaries 
of  the  state  of  Michigan.  The  applicant  contends  that  it  is 
not  and  that  there  is  no  liability  for  the  payment  of  compen- 
sation for  an  accident  occurring  outside  of  the  state. 

It  is  a  general  rule  of  law  that  every  statute  is  confined  in 
its  operations,  to  persons,  property  and  rights  which  are  with- 
in the  jurisdiction  of  the  legislature  which  enacted  it;  and  if 
a  citizen  of  the  state  leaves  it  and  goes  into  another  state  he 
is  left  to  the  protection  of  the  laws  of  the  latter  state. 

Black  on  Interpretion  of  Laws,  Page  91; 
Lewis  Sutherland's  Statutory  Construction,  Sections 
13  and  14. 

This,  however,  seems  to  be  based  upon  a  rule  of  statutory 
construction,  rather  than  upon  a  lack  of  legislative  power  to 
make  such  a  law  operative  outside  the  limits  of  the  state.  Un- 
der this  rule  of  construction  there  is  a  strong  presumption  in 
case  of  every  statute  that  it  is  intended  to  operate  and  be 
effective  only  within  the  limits  of  the  state  or  country  which 
enacted  it,  and  in  the  absence  of  evidence  in  the  law  itself 
that  it  was  intended  to  have  an  extra-territorial  operation,  the 
presumption  seems  to  be  conclusive. 

From  our  examination  of  the  Michigan  Workmen's  Compen- 
sation Law  we  find  no  internal  evidence  of  an  intent  that  the 
law  should  be  operative  outside  of  the  boundaries  of  Mich- 
igan. The  language  used  in  the  act  is  general  and  broad 
enough  to  include  injuries  occurring  without  the  state,  but 
under  the  above  rule  of  construction  such  general  language  is 
limited  and  held  to  be  intended  for  application  only  to  per- 
sons, property  and  rights  within  the  state.  There  is  another 
feature  of  the  act  which  reinforces  this  position  and  indi- 
cates affirmatively  the  intention  of  the  legislature  to  so  limit 
the  operation  of  the  law,  and  that  is  the  requirement  in  Sec- 
43 


338  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

tion  8  of  Part  III  that  the  hearings  to  adjudicate  disputed 
claims  for  compensation  "shall  be  held  at  the  locality  where 
the  injury  occurred."  If  the  act  is  held  to  be  operative  out- 
side of  the  state,  this  requirement  might  make  it  necessary 
for  members  of  the  Board  to  go  to  the  most  distant  portions 
of  the  United  States,  or  even  to  foreign  countries,  to  hear  and 
adjudicate  disputed  claims  for  compensation. 

The  fact  that  both  parties  are  residents  of  Michigan  and  the 
contract  of  employment  was  a  Michigan  contract  will  not,  we 
think,  change  the  rule.  The  obligation  to  pay  compensation  is 
not  a  matter  of  contract,  or  based  upon  contract,  but  is  a 
statutory  duty,  created  by  statute  and  existing  only  by  force 
of  such  statute.  If  this  is  correct,  and  the  statute  is  inopera- 
ive  at  the  place  where  the  accident  happens,  the  happening 
of  the  accident  creates  no  obligation  to  pay  compensation. 

2  B.  W.  C.  C.— Page  1. 

It  is  therefore  held  by  the  Board  that  respondent  is  not  en- 
titled to  compensation. 


In  re  HARRY  HART. 

MEDICAL  SERVICES  RENDERED  MORE  THAN  THREE  WEEKS  AFTER  ACCIDENT. 
Claimant  was  injured  while  in  the  exercise  of  his  ordinary  duties, 
but  serious  effects  did  not  develop  until  more  than  eight  weeks 
after  the  accident  occurred.  Payment  for  medical  and  hospital 
services  was  disputed  on  the  ground  that  such  services  wei 
rendered  more  than  three  weeks  after  the  accident. 

HELD:     1.     Sec.  4,  Part  II,  ot  the  Compensation  Act,  an  employer 
shall   furnish  the  injured  employe  medical   and  hospital  service 


IN  RE  HARRY  HART.  339 

not  exceeding  three  weeks  in  point  of  time,  and  the  commence- 
ment of  such  service  should  be  at  the  time  the  injury  requires  it. 

2.  The  words,  "injury"  and  "accident"  as  used  in  the  act  are 
distinguished  thus:  the  "accident"  is  the  cause  of  the  "injury" 
and  the  time  is  computed  from  the  date  of  the  injury  resulting 
from  an  accident. 


Opinion  by  the  Board : 

The  question  as  to  the  liability  of  an  employer  to  pay  for 
the  hospital  and  medical  services  furnished  the  injured  em- 
ploye is  involved  in  this  case.  The  employe,  Harry  Hart,  on 
November  16,  1912,  while  acting  in  the  course  of  his  employ- 
ment, caught  hold  of  and  attempted  to  stop  a  barrel  of  sugar 
which  was  rolling  down  a  slight  incline.  His  effort  in  stop- 
ping it  caused  a  strain  or  rupture  in  the  groin.  He  experienc- 
ed some  pain  at  the  time,  but  it  did  not  appear  to  be  serious, 
and  he  kept  on  at  work  until  January  6,  when  the  hernia  be- 
came more  clearly  developed  and  its  condition  so  serious  that 
it  necessitated  an  operation.  The  operation  was  succesful  and 
he  returned  to  work  three  weeks  after  the  sixth  of  January 
fully  recovered.  The  doctor's  bill  for  the  operation  is  dis- 
puted by  the  employer  upon  the  ground  that  it  was  incurred 
more  than  three  weeks  after  the  injury. 

The  determination  of  this  question  involves  the  construction 
of  Section  4,  Part  II  of  the  Compensation  Act,  which  is  as 
follows : 

"During  the  first  three  weeks  after  the  injury  the  employer 
shall  furnish,  or  cause  to  be  furnished,  reasonable  medical  and 
hospital  services  and  medicines  when  they  are  needed." 

The  claim  is  made  on  the  part  of  the  employer  that  the  in- 
jury having  occurred  on  November  16,  the  three  weeks  during 
which  medical  and  hospital  service  is  required  to  be  furnished 
commenced  on  that  date,  and  such  three  weeks'  period  had 
expired  before  any  part  of  the  medical  and  hospital  service 
claimed  for  in  this  case  was  rendered.  In  the  opinion  of  the 
Board  it  is  the  clear  intent  of  the  law  that  in  all  cases  the 


340  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

employer  shall  furnish  the  injured  employe  hospital  and  medi- 
cal service  if  the  injury  requires  such,  but  not  exceeding  three 
weeks  in  point  of  time.  That  the  commencement  of  such  ser- 
vice to  be  furnished  should  be  at  the  time  when  the  injury  re- 
quires it,  which  in  a  vast  majority  of  cases  is  immediately  fol- 
lowing the  accident.  There  are,  however,  certain  kinds  of  ac- 
cidents where  the  injury  or  disability  does  not  develop  or  be- 
come serious  until  some  time  after  the  accident  occurs  and 
the  medical  and  hospital  service  in  this  class  of  cases  is  not 
required  immediately  after  the  accident,  but  becomes  neces- 
sary at  a  later  time.  It  seems  apparent  that  it  was  not  the 
legislative  intent  to  deprive  persons  sustaining  injuries  of  the 
kind  last  above  mentioned  of  such  medical  and  hospital  ser- 
vice for  the  mere  reason  that  the  disability  did  not  immediately 
follow  the  accident;  and  from  a  careful  examination  of  the 
language  of  the  statute  we  are  of  the  opinion  that  such  con- 
struction is  not  required.  The  language  used  in  the  statute  is 
''during  the  first  three  weeks  after  the  injury."  The  word 
"injury"  in  its  ordinary  signification  is  distinguished  from  the 
word  "accident,"  and  differs  materially  from  it  in  meaning. 
The  word  "accident"  is  generally  used  to  designate  the  cause, 
and  the  word  "injury"  is  used  to  designate  the  effect.  The 
effect  of  the  accident,  (which  is  the  injury)  may  be  and  gener- 
ally is  immediate,  but  in  a  considerable  number  of  cases  the 
effect  of  the  accident  (which  is  the  injury)  does  not  imme- 
diately follow  in  point  of  time,  but  develops  and  produces  dis- 
ability at  a  later  time,  in  some  instances  weeks  or  months 
after  the  accident.  It  is  apparent  that  if  we  give  the  word 
"injury,"  its  ordinary  significance  as  distinguished  from  acci- 
dent, the  "first  three  weeks  after  the  injury"  would  commence 
to  run  from  the  time  the  accident  in  cases  like  this  pro- 
duces the  actual  disability  requiring  medical  or  hospital  ser- 
vice. We  hold  in  this  case  that  such  service  should  be  paid 
for  by  the  employer. 


KENNELLY  vs.  STEARNS  SALT  &  LUMBER  CO.  341 


SUPREME  COURT. 

JOHN  KENNELLY, 

Applicant  and  Appellee, 
vs. 
STEARNS  SALT  &  LUMBER  COMPANY, 

and  NEW  ENGLAND  CASUALTY  COMPANY, 
Defendants  and  Appellants. 

EMPLOYMENT — EXTINGUISHING  FOREST  FIRE  UNDER  ORDER  OF  STATE  FIRE 
WABDEN. 

Applicant,  an  employe  of  the  Stearns  Salt  &  Lumber  Company  was 
working  with  a  gang  of  men  constructing  a  logging  railroad, 
when  he  and  his  co-laborers  were  ordered  by  the  fire  warden 
to  aid  in  extinguishing  a  forest  fire.  While  engaged  in  fight- 
ing this  fire,  applicant  was  struck  by  a  falling  tree  and  the  sight 
of  his  left  eye  destroyed. 

HELD:  That  at  the  time  of  the  injury  he  was  not  engaged  in 
his  regular  employment,  but  was  working  for  the  state  under 
the  direction  and  authority  of  the  fire  warden. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  that  Board  in  awarding  compensation  to  John  Ken- 
nelly  for  injury  received  while  in  the  employ  of  the  Stearns 
Salt  &  Lumber  Company.  Reversed. 

John  C.  Myers,  of  Detroit,  Attorney  for  Applicant. 
Frank  J.  Riggs,  of  Detroit,  Attorney  for  Defendants. 

BIRD,  J.  While  claimant  was  in  the  employ  of  the  defend- 
ant, the  Stearns  Salt  &  Lumber  Company,  with  a  gang  of  men 
constructing  a  railroad,  he  with  several  of  his  co-laborers  was 
ordered  by  the  Fire  Warden  to  go  with  him  and  assist  in  ex- 
tinguishing a  forest  fire.  The  claimant  complied  with  the  or- 
der, and  while  engaged  in  that  work,  he  was  struck  by  a  fall- 
ing tree,  and  the  sight  of  his  left  eye  was  destroyed.  He  pre- 


342  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

sented  his  claim  to  the  Industrial  Accident  Board  as  a  ser- 
vant of  the  Stearns  Salt  &  Lumber  Company.  The  Board  of 
Arbitration  allowed  his  claim  at  $5.02  per  week  for  one  hun- 
dred weeks.  Subsequently,  on  appeal  this  award  was  ap- 
proved by  the  Industrial  Accident  Board.  Defendant  insur- 
ance company  has  removed  the  proceedings  to  this  court  by 
certiorari,  claiming  that  the  award  should  not  have  been  made, 
because  claimant  at  the  time  of  his  injury  was  engaged  in 
work  for  the  State,  and  not  for  the  defendant,  Stearns  Salt  & 
Lumber  Company. 

Counsel  for  claimant  insist  that  that  question  was  one  of 
fact,  and  the  fact  having  been  found  by  the  decision  of  the 
Board,  it  is  not  reviewable  in  this  court. 

(1)  The  real  question  presented  is  whether  there  is  any 
testimony  in  the  record  to  support  the  finding  of  the  Board. 
The  testimony  is  brief,  and  is  set  out  in  the  record  and  there 
is  no  disagreement  concerning  it.  It  shows  that  while  the 
claimant  was  engaged  in  work  for  the  Stearns  Salt  &  Lumber 
Company,  the  Fire  Warden  came  along  and  ordered  him  to 
go  with  him  to  assist  in  extinguishing  a  forest  fire.  The  rec- 
ord shows  that  he  was  not  only  ordered  to  go  by  the  Fire  War- 
den, but  that  his  work  was  directed  by  the  Fre  War- 
den after  he  arrived  there.  It  is  further  shown  that  he  was 
paid  his  regular  wages  by  the  Stearns  Salt  &  Lumber  Com- 
pany, and  that  it  was  reimbursed  by  payment  from  the  state 
and  county,  as  the  law  provides  in  such  cases.  Section  6  of 
Act  249  of  the  Laws  of  1903  as  amended  by  Act  317  of  the 
Laws  of  1907,  confers  upon  the  Fire  Warden  the  following 
authority : 

"It  shall  be  the  duty  of  each  Fire  Warden  to  take  precautions  to 
prevent  the  setting  of  forest  fires,  and  when  his  district  is  suffering 
or  threatened  with  fire,  to  go  to  the  place  of  danger  to  control  such 
fires,  and  each  forest  fire  warden  shall  have  the  authority  to  call  to 
his  assistance  in  emergencies  any  able-bodied  male  person  "  over 
eighteen  years  of  age,  and  if  such  person  refuses,  without  reasonable 
justification  or  excuse,  to  assist,  *  *  *  *  he  shall  be  deemed  guilty 
of  a  misdemeanor  and  shall  upon  conviction  thereof,  be  punished 


KENNELLY  vs.  STEARNS  SALT  &  LUMBER  CO.     343 

by  a  fine  of  not  more  than  $100  or  imprisonment  in  the  county  jail 
not  to  exceed  three  months." 

This  provision  of  the  statute  clearly  authorizes  the  Fire 
Warden  to  exercise  the  power  which  he  did  on  this  occasion. 
We  do  not  think  it  can  be  said  that  while  claimant  was  en- 
gaged in  this  service  he  was  engaged  in  his  regular  employ- 
ment. He  was  ordered  by  a  state  officer  to  leave  his  work  and 
go  to  the  assistance  of  the  State.  After  he  arrived  there  he 
was  directed  by  a  State  officer,  and  for  his  time  spent  in  such 
work  he  Avas  paid  by  the  county  and  State.  It  would  hardly 
be  contended  that  if  he  were  impaneled  to  sit  on  a  jury  and 
had  met  some  accident  while  engaged  in  that  service  his  em- 
ployer would  be  liable  therefor.  Nor  could  that  contention  be 
made  had  claimant  been  injured  while  assisting  the  sheriff  at 
his  command  in  quelling  a  riot.  We  think  this  situation  is  no 
different.  When  he  was  ordered  to  go  with  the  Fire  Warden, 
he  left  his  work  temporarily  to  discharge  a  duty  which  was 
incumbent  upon  him  as  well  as  upon  every  other  citizen  sim- 
ilarly situated.  We  do  not  think  it  can  be  said  that  his  in- 
jury arose  out  of  his  employment  or  during  the  course  of  it. 
The  testimony  does  not  support  such  a  finding. 

Some  point  is  made  by  claimant  that  he  was  paid  his  reg- 
ular salary  by  his  employer  for  the  time  spent  in  fighting  fire. 
We  do  not  regard  this  as  of  importance  as  the  record  explains 
that  it  was  done  as  a  matter  of  convenience  and  that  his  em- 
ployer was  afterwards  reimbursed  from  the  public  funds  for 
his  services.  Some  point  is  also  made  because  his  foreman  or 
superintendent  directed  some  of  his  acts  while  at  the  fire. 
This  quite  likely  was  the  result  of  habit,  rather  than  of  au- 
thority upon  the  part  of  the  foreman  or  superintendent.  The 
claimant's  own  testimony  shows  that  his  work  was  directed 
by  the  Fire  Warden. 

The  conclusion  of  the  Industrial  Accident  Board  must  be 
reversed  and  the  award  set  aside. 


344  MICHIGAN  WORKMEN'S   COMPENSATION  CASES. 


SUPREME  COURT. 

JAMES  F.  ROBBINS, 

Applicant  and  Appellee, 
vs. 
ORIGINAL  GAS  ENGINE  COMPANY 

and 
ZURICH  GENERAL  .ACCIDENT  and 

LIABILITY  INSURANCE   COMPANY, 
Respondents  and  Appellants. 

HERNIA — ACCIDENT  WITHIN  THE  MEANING  OF  THE  COMPENSATION  LAW. 
Applicant  with  the  assistance  of  another  man  was  moving  a  gasoline 
engine  weighing  some  600  pounds,  this  being  a  part  of  his  regular 
work.  He  was  suddenly  and  accidentally  put  at  a  disadvantage 
in  moving  the  engine  by  the  act  of  his  fellow  workman  and  the 
sticking  of  the  engine  on  the  concrete  floor,  and  the  rupture  and 
immediate  protrusion  of  the  abdominal  sac  were  caused  by  his 
efforts  to  retrieve  his  position  and  do  his  work. 

HELD:     An  injury  by  accident  within  the  meaning  of  the  Work- 
men's Compensation  Law. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  that  board  in  awarding  compensation  to  James  F. 
Robbins  for  injuries  sustained  while  in  the  employ  of  Original 
Gas  Engine  Company.  Modified. 

SMelds  &  Silsbee,  of  Lansing,  for  appellant. 
Clark,  Lockwood,  Bryant  &  Klein,  of  Detroit,  for  respond- 
ents. 

OSTRANDER,  J.  It  is  the  contention  of  respondents,  plain- 
tiffs in  certiorari,  that  the  testimony  fails  to  prove  accidental 
injury.  The  testimony  introduced  on  the  part  of  claimant 
tended  to  prove  that  on  January  22,  1915,  while  he  assisted 
another  in  moving  a  gasoline  engine  weighing  some  600 


ROBBINS  vs.  ORIGINAL  GAS  ENGINE  CO.  345 

pounds,  be  suddenly  had  pain  in  his  left  groin,  noticed  a  small 
swelling  in  the  groin  that  night,  consulted  a  physician,  was  ad- 
vised that  he  had  a  hernia  and  was  operated  upon  for  hernia. 
His  claim  is  for  compensation  for  time  lost  from  February  6, 
1915,  to  April  5,  1915,  for  medical  attendance,  hospital  and 
ambulance  fees,  a  total  of  ^167.08.  This  mount  was  allowed 
by  arbitrators,  and,  upon  appeal,  the  allowance  was  affirmed. 

Claimant  had  worked  for  the  Original  Gas  Engine  Company 
for  about  nine  years,  painting  gasoline  engines.  For  three 
years  the  conditions  under  which  he  worked  and  the  method 
of  doing  the  work  were  the  same.  Claimant  described  the  in- 
jury, as  well  as  the  conditions,  as  follows: 

"Q.     What  happened,  Mr.  Robbins? 

"A.  Well,  in  the  course  of  painting  the  engines,  we  have  to  wash 
the  grease  off,  and  where  we  wash  them  there  is  a  slope  down  to  a 
drain,  and  pulling  that  engine  up  out  of  there,  putting  it  where  we 
are  going  to  paint  them, — a  man  takes  hold  of  each  side  of  the  engine, 
on  tfce  shaft,  pulls  them  up  out  of  there. 

"Q.     And  the  engine  stuck? 

"A.  Naturally,  on  the  hump  there.  Two  of  us  were  working  on  the 
engine,  Mr.  Carr,  the  gentleman  here,  and  myself.  In  order  to  move 
the  engine  Mr.  Carr  would  take  hold  of  one  shaft  in  a  stooping  posi- 
tion. On  the  22nd  day  of  January  when  we  were  pulling  the  engine 
up  out  of  there,  Mr.  Carr  had  the  long  end  of  the  shaft  and  I  had 
the  short  end,  gave  him  a  little  advantage  but  we  don't  look  at  that. 
Any  way  my  side  seemed  to  get  behind  and  I  used  extra  effort  to 
start  it  and  at  that  time  I  felt  pain. 

"Q.  Just  describe,  if  you  will,  the  position  you  were  in,  what 
doing,  and  where  the  pain  was? 

"A.  Well,  we  were  stooping  over,  in  a  stooped  position  (indicat- 
ing), pulling,  and  the  pain  shot  up  across  my  side  of  my  body  in 
the  groin.  As  near  as  I  can  figure,  the  engine  we  were  pulling 
weighed  somewhere  in  the  neighborhood  of  600  pounds.  I  have  never 
previously  suffered  similar  pain  in  the  region  of  my  groin.  I  have 
never  had  any  attacks  similar  to  what  developed  after  this  pain. 
The  pain  I  suffered  was  simply  a  pain  that  shot  around  there  and 
I  felt  weak  afterwards.  I  did  not  do  anything  concerning  the  pain 
immediately,  but  noticed  it  once  in  a  while.  I  looked  my  body  over 
that  night  to  see  whether  there  was  any  injury  and  I  noticed  a  small 
swelling  in  the  left  groin.  This  swelling  was  not  there  when  I  went 
to  work  that  morning.  I  do  not  know  of  anything  that  occurred  to 
me  that  would  have  caused  the  swelling,  except  this  strain  and  lifting 


346  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

the  time  I  felt  the  pain.  When  I  discovered  the  swelling  I  was  wor- 
ried about  it  and  consulted  Dr.  P.  A.  Jones,  that  would  be  on  Satur- 
day evening.  He  did  not  make  any  investigation  of  niy  body  at 
that  time,  although  I  described  the  sense  of  pain  that  I  bad  and  the 
swelling.  He  did  not  see  the  swelling  that  night,  neither  did  he 
prescribe  anything  for  me.  He  said,  I  don't  remember  the  doctor's 
exact  words,  something  to  the  effect  that  a  cold  had  settled  in  the 
glands  and  it  would  pass  away  in  a  day  or  two.  I  went  back  to  the 
same  doctor  again  on  Monday  after  that  Saturday  night.  I  worked 
Saturday  and  the  following  Monday,  I  went  back  to  the  doctor  because 
the  swelling  was  larger.  The  doctor  at  that  time  made  an  examina- 
tion and  said  that  I  had  hernia." 

On  cross-examination  he  testified: 

"Prior  to  January  22nd,  1915,  I  did  not  have  a  hernia.  I  know 
what  a  hernia  is  in  a  way.  It  is  the  breaking  of  the  lining  of  the 
stomach,  and  while  I  don't  really  know  whether  I  had  a  hernia 
before  or  not  I  never  had  any  pain  or  swelling  down  there.  Never 
had  any  trouble  there. 

"Q.     You  don't  know  whether  you  had  a  hernia  or  not? 

"A.  Well,  according — if  that  is  what  I  had,  I  never  had  one  be- 
fore. I  have  been  employed  with  the  Original  Gas  Engine  Company 
for  almost  nine  years. 

"Q.  And  how  long  had  you  been  doing  this  particular  class  of 
work? 

"A.    Ever  since  I  have  been  there. 

"Q.    The  very  same  kind  of  work? 

"A.  Exactly.  The  conditions  of  the  factory  during  the  nine  years 
period  was  not  exactly  the  same  as  on  January  22nd,  1915,  'cause  the 
Original  Gas  Engine  Company  have  moved  into  these  quarters  about 
three  years  ago  and  previous  to  that  time,  of  course  we  did  not  have 
the  same  floor  to  work  on. 

"Q.  Then  for  three  years  you  had  been  doing  the  work  in  the 
exact  manner  you  were  doing  the  work  under  date  of  January  22nd? 

"A.     (Witness  nods  yes.) 

"Q.  The  engine  weighed,  you  say,  in  the  neighborhood  of  300  to 
600  pounds? 

"A.     Somewhere  in  the  neighborhood  of  600. 

"Q.    You  have  been  handling  the  same  make  of  engine  right  along? 

"A.  Yes;  of  course  you  understand  these  engines  are  not  the  same 
size. 

"Q.  And  when  you  were  lifting  the  engine  on  this  particular  day, 
at  this  particular  time,  you  merely  felt  a  pain? 

"A.     A  sharp  pain,  yets. 


ROBBINS  vs.  ORIGINAL  GAS  ENGINE  CO.  347 

"Q.     That  was  all  out  of  the  ordinary  that  happened  at  that  time? 

"A.     Yes.    *    *    *    * 

"Q.  You  were  doing  the  same  class  of  work  you  had  been  doing 
for  nine  years? 

"A.    Yes,  sir. 

"Q.  There  was  nothing  whatever  out  of  the  ordinary  that  you  did 
on  that  particular  day? 

"A.     No,  sir." 

And  on  redirect: 

"Q.  Mr.  Robbins,  do  you  ever  remember  any  other  occasion  where 
any  engine  weighed  as  much  as  this  one  stuck  and  you  had  to  exert 
yourself  as  you  did  in  this  case  to  move  it? 

"A.  I  couldn't  state  any  particular  case,  but  there  has  been  en- 
gines— it  is  a  cement  floor,  and  cast  iron  has  a  tendency  to  stick. 

"Q.    Had  it  occurred  before  that  day  at  all,  that  you  remember? 

"A.  Well,  I  presume  there  has  been  engines  sticking  down  there, 
but  I  couldn't  name  any  particular  time. 

"Q.  Could  you  say  for  sure  whether  they  stuck  so  you  had  to  exert 
extra  strength? 

"A.    I  couldn't  do  it." 

The  history  of  the  particular  case  excludes  the  idea  of  the 
use,  with  violence,  of  an  instrument,  or  substance,  puncturing 
or  rending  the  abdominal  wall. 

A  physician,  the  one  first  consulted  by  claimant,  testified 
that  in  his  opinion  the  hernia  was  caused  by  the  strain  in  mov- 
ing the  engine.  He  further  testified  that  when  he  first  ex- 
amined claimant  he  was  able  to  reduce  the  hernia  with  his 
finger;  that  there  were  no  adhesions.  In  these  circumstances 
he  found  support  for  his  conclusion  that  this  was  a  new  and 
not  an  old  hernia.  The  surgeon  who  operated  upon  claimant 
testified  that  in  his  opinion  the  hernia  was  produced  by  the 
exertion  described  by  claimant.  All  the  experts  seem  to  agree 
that  the  visible  evidence  of  the  hernia  is  the  protrusion 
through  the  inguinal  ring  of  the  peritoneum  and  its  contents : 

"the  hernia  is  the  peritoneum  going  through,  accompanied  by  the 
intestines  or  some  other  substance." 

But  the  testimony  for  respondents  is  to  the  effect  that  the 
peritoneum  is  incapable  of  sudden,  and  is  capable  of  very 


348  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

gradual,  extension,  that  the  sudden  complete  development  of 
hernia  in  a  pathological  sense  is  impossible,  but  the  hernia 
may  be  felt — the  sudden  projection  of  hernial  contents  into 
the  performed  sac — for  the  first  time  during  a  straining  effort. 
Various  medical  authorities  to  which  the  court  is  referred  ap- 
pear to  sustain  the  proposition  that  hernia  is  of  slow  forma- 
tion and  can  never  arise  from  a  single  augmentation  of  intra- 
abdominal  tension,  however  great  it  may  be.  It  may  be  said 
that  the  testimony  of  claimant's  experts  does  not  deny  this 
proposition;  that  they  regarded  the  condition  which  they 
found — the  condition  they  undertook  to  relieve — as  caused  by 
the  strain  and  exertion  of  the  claimant.  They  found  a  hernia, 
a  protrusion,  to  be  reduced,  and  found  cause  for  it  in  the  de- 
scribed strain  and  exertion  of  claimant. 

The  Michigan  law  does  not  award  compensation  for  all  per- 
sonal injuries  suffered  by  an  employe,  but  for  accidental  in- 
juries only.  Adams  v.  Acme  White  Lead,  etc.  Works,  182 
Mich.  157.  The  vital  question  which  the  Industrial  Accident 
Board  had  to  determine  was  not  whether  on  January  22, 
1915,  it  was  discovered  that  claimant  had  hernia,  but  was 
whether  claimant  on  that  day  suffered  an  accidental  injury, 
arising  out  of  and  in  the  course  of  his  employment.  Accept- 
ing respondents'  proposition  as  true,  it  may  be  said  that  upon 
the  occasion  in  question,  by  reason  of  a  strain,  or  effort,  of 
claimant,  in  performing  his  duties,  an  undiscovered  and  uu- 
discoverable,  but  previously  formed,  sac  was  pushed  through 
the  left  inguinal  ring  and  muscles.  So  much  injury  claimant 
then  and  there  suffered,  to  alleviate,  if  not  to  cure  which,  med- 
ical attention  and  treatment  were  required.  It  is  compensa- 
tion for  that  injury  which  is  claimed  and  was  allowed.  Was 
it  an  accidental  injury  within  the  meaning  of  the  law?  It  has 
been  said  of  the  expressions  "accident"  and  "accidental,"  em- 
ployed in  an  act  having  a  purpose  similar  to  ours,  that  they 
were  used  with  their  popular  and  ordinary  meaning.  Hap- 
pening by  chance;  unexpectedly  taking  place;  not  according 
to  the  usual  course  of  things;  or  not  as  expected. 


ROBBINS  vs.  ORIGINAL  GAS  ENGINE  CO.  349 

"If  a  result  is  such  as  follows  from  ordinary  means,  voluntarily  em- 
ployed, in  a  not  unusual  or  unexpected  way,  it  cannot  be  called  a 
result  effected  by  accidental  means;  but  if  in  the  act  which  precedes 
the  injury,  something  unforeseen,  unexpected,  unusual  occurs  which 
produces  the  injury,  then  the  injury  has  resulted  through  accidental 
means."  Mut.  Benefit  Asso.  v.  Barry,  131  U.  S.  100,  121. 


This  is  a  case  relied  upon  by  respondents. 

It  has  been  held  that  death  resulting  from  a  ruptured  artery 
was  not  accidental  when  the  rupture  occurred  while  the  in- 
sured was  reaching  from  a  chair  to  close  a  window,  did  not 
slip  or  fall  or  lose  his  balance  and  nothing  unforeseen  occur- 
red except  the  bursting  of  the  artery.  Feder  v.  Iowa  State 
Trav.  Men's  Asso.,  107  Iowa,  538.  An  examination  of  cases 
arising  principally  upon  accident  insurance  policies,  some  of 
which  are  collected  in  a  note  to  Lehman  v.  Great  Western 
Acci.  Asso.,  42  L.  R.  A.  (N.  S.)  562,  discloses  that  in  the  opin- 
ions which  seem  to  be  best  considered  the  distinction  is  ob- 
served between  the  means  by  which  an  injury  is  produced  and 
the  result  of  the  producing  cause  or  causes.  It  is  not  sufficient 
that  there  be  an  unusual  and  unanticipated  result;  the  means 
must  be  accidental — involuntary  and  unintended.  There 
must,  too,  be  some  proximate  connection  between  accidental 
means  and  the  injurious  result.  It  is  doubtful,  however,  if  in 
applying  our  statute,  its  general  purpose  being  considered, 
the  court  should  exactly  follow  the  rules  suggested  and  ap- 
plied in  the  cases  referred  to.  The  statute  seems  to  contem- 
plate that  an  accidental  injury  may  result  by  mere  mischance ; 
that  accidental  injuries  may  be  due  to  carelessness,  not  wil- 
ful, to  fatigue,  and  to  miscalculation  of  the  effects  of  volun- 
tary action.  There  is  testitmony  in  the  record,  although  it  is 
not  very  conclusive,  to  support  a  finding  that  claimant  was 
suddenly,  and  accidentally,  put  at  disadvantage  by  the  act  of 
his  fellow  workman  and  the  sticking  of  the  engine  on  the  con- 
crete floor,  and  that  the  rupture  and  immediate  protrusion  of 
the  abdominal  sac  were  caused  by  his  efforts  to  retrieve  his 
position  and  do  his  work.  It  is  assumed  that  it  was  the  first 
time  the  sac  had  been  forced  through  the  abdominal  wall.  If 


350  MICHIGAN  WORKMEN'S   COMPENSATION  CASES. 

it  is  also  assumed  that  there  was  a  certain  lack  of  physical 
integrity  in  the  parts  where  the  injury  was  manifested,  still  I 
think  claimant  may  have  compensation  for  the  injury  he  suf- 
fered. I  decide  only  the  particular  case,  and  in  doing  so  de- 
cline to  hold,  upon  this  record,  that  claimant  suffered  from 
disease  and  not  from  accidental  injury.  See,  Grove  v.  Michi- 
gan Paper  Co.,  184  Mich.  440. 

The  method  employed  by  the  Board  to  ascertain  the  amount 
of  claimant's  wages  is  questioned.  Claimant  had  been  em- 
ployed by  the  Original  Gas  Engine  Works  for  nine  years. 
During  the  period  from  February  6,  1914,  to  February  6,  1915, 
he  worked  the  entire  time  except  seven  weeks — 42  working 
days.  His  wages  were  $19.50  per  week.  He  earned  and  re- 
ceived $790.15  during  the  year.  The  average  weekly  wages 
actually  earned  during  the  year  was  $15.20,  one-half  of  which 
is  $7.60.  But  claimant  was  awarded  $8.76  a  week,  or  an 
average  weekly  wage  of  $17.52.  It  was  ruled  that,  having 
lost  seven  weeks,  claimant  had  not  worked  substantially  the 
whole  year,  in  the  same  "employment,  immediately  preceding 
his  injury  and  that  300  times  the  average  daily  wage  was  the 
average  annual  earning.  The  statute,  so  much  of  it  as  is  ma- 
terial, provides: 

"Sec.  11.  The  term  'average  weekly  wages'  as  used  in  this  act  is 
defined  to  be  one  fifty-second  part  of  the  average  annual  earnings  of 
the  employe.  If  the  injured  employe  has  not  worked  in  the  employ- 
ment in  which  he  was  working  at  the  time  of  the  accident,  whether 
for  the  employer  or  not,  during  substantially  the  whole  of  the  year 
immediately  preceding  his  injury,  his  average  annual  earnings  shall 
consist  of  three  hundred  times  the  average  daily  wage  or  salary  which 
he  has  earned  in  such  employment  during  the  days  when  so  employed. 
If  the  injured  employe  has  not  worked  in  such  employment  during 
substantially  the  whole  of  such  immediately  preceding  year,  his  aver- 
age annual  earnings  shall  consist  of  three  hundred  times  the  average 
daily  wage  or  salary  which  an  employe  of  the  same  class  working 
substantially  the  whole  of  such  immediately  preceding  year  in  the 
same  or  a  similar  employment  in  the  same  or  a  neighboring  place, 
shall  have  earned  in  such  employment  during  the  days  when  so  em- 
ployed. In  cases  where  the  foregoing  methods  of  arriving  at  the 
average  annual  earnings  of  the  injured  employe  cannot  reasonably 
and  fairly  be  applied,  such  annual  earnings  shall  be  taken  at  such 


ROBBINS  vs.  ORIGINAL  GAS  ENGINE  CO.  351 

sum  as,  having  regard  to  the  previous  earnings  of  the  injured  em- 
ploye, and  of  other  employes  of  the  same  or  most  similar  class,  work- 
ing in  the  same  or  most  similar  employment,  in  the  same  or  neighbor- 
ing locality,  shall  reasonably  represent  the  annual  earning  capacity 
of  the  injured  employe  at  the  time  of  the  accident  in  the  employment 
in  which  he  was  working  at  such  time." 

Claimant  had  worked  in  the  employment,  that  is,  in  the 
capacity  and  line  of  work  in  which  he  was  working  at  the 
time  of  his  injury,  for  many  years — not  only  substantially, 
but  wholly.  It  was  therefore  manifestly  improper  to  employ 
the  factor  of  average  daily  wages  in  determining  the  average 
weekly  and  annual  wages.  It  is  obvious,  too,  that  the  aver- 
age annual  wages  of  one  employed  for  years  in  the  same  capac- 
ity and  line  of  work  cannot  be  determined  except  by  compar- 
ing the  wages  of  two  or  more  years.  A  man  may  change  his 
employment  or  the  capacity  in  which  he  follows  it.  If  he  has 
done  this  at  a  time  substantially  less  than  a  year  before  his 
injury,  then  the  statute  fixes  three  hundred  times  his  average 
daily  wages  as  his  average  annual  wages.  For  the  man  who 
works  for  years  in  the  same  employment  and  is  injured,  the 
statute  fixes  average  weekly  wages  at  one  fifty-second  part  of 
his  average  annual  earnings.  This  is  the  rule  which  should 
be  applied  in  this  case.  The  record  does  not  supply  the  in- 
formation required  to  make  a  finding. 

It  is  assumed  that  the  parties  in  interest  can  easily  ascer- 
tain and  agree  about  the  annual  earnings  of  claimant  for  a 
period  of  at  least  three  years.  It  is,  of  course,  possible  that 
the  award  made  is  substantially  a  correct  award,  but,  the  rule 
applied  being  inapplicable,  it  must  be  set  aside. 


352  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

PATRICK  FOLEY, 

Applicant  and  Appellee, 
vs. 
DETROIT  UNITED  RAILWAY, 

Respondent  and  Appellant. 

REOPENING    CASE — AUTHORITY    OF    BOARD — TEST    IN    DETERMINING    DIS- 
ABILITY. 

Applicant  was  employed  by  respondent  as  motorman,  and  on  July 
22,  1913,  suffered  a  compound  fracture  of  his  left  leg  above 
the  ankle  in  a  collision.  Medical  and  hospital  service  was  fur- 
nished and  compensation  paid  for  a  time.  In  February,  1914, 
he  was  put  to  work  as  a  watchman  at  respondent's  car  barn 
and  signed  a  settlement  receipt,  which  was  filed  with  the  Board. 
His  injured  leg  was  still  disabled  so  as  to  prevent  him  from 
resuming  his  regular  work  as  motorman,  and  by  reason  of  cer- 
tain misconduct  he  was  discharged  from  his  position  as  watch- 
man at  the  car  barn.  He  filed  a  petition  praying  that  his  case 
be  reopened  and  that  he  be  awarded  further  compensation,  the 
petition  being  granted  by  the  Board. 

HELD:  1.  That  the  action  of  the  Board  in  reopening  the  case 
and  granting  further  compensation  was  within  its  authority. 

2.  That  the  test  in  determining  the  question  of  disability  is 
capacity  to  earn  in  the  same  employment  in  which  the  em- 
ploye was  injured. 


Appellant  seeks  by  writ  of  certiorari  to  review  and  reverse 
an  order  of  the  State  Industrial  Accident  Board  reopening 
applicant's  case  and  awarding  him  additional  compensation. 
Affirmed. 

Beaumont,  Smith  &  Harris,  of  Detroit,  Attorneys  for  Ap- 
plicant. 

,  Leete  cC-  Moody,  of  Detroit,  Attorneys  for  .Appellant. 


FOLEY   vs.   DETROIT   UNITED   RAILWAY.  353 

STEERED  J.  Claimant  was  employed  by  respondent  as  a  mo- 
tornian  working  10  hours  per  day  at  an  average  weekly  wage 
of  $16.25.  On  July  22,  1913,  his  car  was  in  a  collision  which 
resulted  in  a  compound  fracture  of  his  left  leg  above  the 
ankle.  He  was  at  once  taken  to  a  hospital  and  there  re- 
mained until  February  17,  1914.  While  there  he  was  paid  one- 
half  his  average  weekly  wages  and  provided  with  doctors,  spe- 
cial nurses  when  needed,  medicine,  general  hospital  attend- 
ance and  his  wants  all  supplied,  at  appellant's  expense.  When 
his  condition  became  such  that  he  said  he  was  well  enough  to 
go  back  to  work  and  desired  to  do  so  he  was  discharged  from 
the  hospital.  He  testified  that  he  was  kept  there  until  he  re- 
covered and  prior  to  his  discharge  he  walked  out  for  exercise, 
and  k'used  to  come  down  town  and  walk  around  lots  of  times." 
He  returned  to  work  on  February  22,  1914,  as  a  watchman  at 
one  of  respondent's  car  barns,  receiving  $2.50  per  working 
day  of  9  hours  each  for  7  days  in  the  week,  which  amounted  to 
more  than  the  wages  he  had  been  receiving  as  a  motorman 
prior  to  his  injury.  While  he  was  yet  in  the  hospital,  on  Sep- 
tember 16,  1913,  an  agreement  for  compensation  was  entered 
into  between  him  and  appellant  in  accordance  with  provisions 
of  Act  10  Public  Acts,  1912,  extra  session,  using  a  form  of 
the  Industrial  Accident  Board  as  follows: 

"AGREEMENT  IN  REGARD   TO   COMPENSATION. 

We,  Patrick  Foley,  residing  at  city  or  town  of  Detroit,  Michigan, 
and  Detroit  United  Railway,  have  reached  an  agreement  in  regard  to 
compensation  for  the  injury  sustained  by  said  employe  while  in  the 
employ  of  Detroit  United  Railway,  12  Woodward  ave.,  Detroit,  Michi- 
gan, 8:50  p.  m.  July  22,  1913,  Jefferson  and  Cadillac  ave.,  Detroit, 
Michigan.  Collided  with  car  ahead  when  he  ran  his  car  too  close 
to  it.  Leg  broken. 

The  terms  of  the  agreement  follow: 

$8.13  per  week  payable  under  act.  Average  weekly  wage  $16.25." 
(Duly  dated,  signed  and  witnessed.) 

This  agreement  was  approved  by  the  Industrial  Accident 
Board  on  the  following  form: 


354  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"STATE   OF  MICHIGAN 

INDUSTRIAL  ACCIDENT  BOARD 

Oakland  Building 

Lansing 

Members  of  Board:  John  E.  Kinnane,  Chairman,  Bay  City;  Richard 
L.  Drake,  Secretary;  J.  A.  Kennedy,  Sault  Ste.  Marie;  Ora  E. 
Reaves,  Jackson. 

December  6,  1913. 
IN  RE  D.  U.  R.:    PATRICK  FOLEY. 

Detroit  United  Railway  Co., 
Detroit,  Michigan. 

Gentlemen:  The  Agreement  in  regard  to  compensation  in  the 
above  case  has  been  passed  upon  by  the  Industrial  Accident  Board 
and  app-oved. 

Yours   very  truly, 

Secretary. 

Note:  It  is  required  by  the  Industrial  Accident  Board  that  receipts 
on  Account  of  Compensation  (Form  No.  11)  be  taken  when  weekly 
payments  are  made,  same  to  be  submitted  to  the  Board  monthly.  A 
settlement  receipt  (Form  No.  12)  will  be  signed  when  last  payment 
is  made  and  will  be  accompanied  by  Final  Report  of  Accident  (Form 
No.  7a).  If  above  forms  have  already  been  submitted  kindly  disre- 
gard this  clause." 

On  February  17,  1914,  when  claimant  applied  to  return  to 
work,  he  was  paid  in  full  the  compensation  then  due  him  ac- 
cording to  previous  agreement  and  signed  a  receipt  therefor, 
but  he  did  not  resume  work  until  five  days  later,  for  which 
intervening  time  he  was  also  paid  on  the  basis  of  their  agree- 
ment, after  which  he  gave  appellant  a  receipt  in  full  as  fol- 
lows: 

"SETTLEMENT  RECEIPT. 

Received  of  Detroit  United  Railway  the  sum  of  ($4.65)  four  dol- 
lars and  sixty-five  cents,  making  in  all,  with  weekly  payments  already 
received  by  me,  the  total  sum  of  ($248.55)  two  hundred  forty-eight 
dollars  and  fifty-five  cents,  in  settlement  of  compensation  under  the 
Michigan  Workmen's  Compensation  Law,  for  all  injuries  received  by 
me  on  or  about  the  twenty-second  day  of  February  (July),  1914,  while 


FOLEY  vs.   DETROIT   UNITED   RAILWAY.  355 

in  the  employ  of  Detroit  United  Railway,  12  Woodward  ave.,  Detroit, 
Michigan,  subject  to  review  and  approval  by  the  Industrial  Accident 
Board. 

Witness  my  hand  this  4th  day  of  March,  1914. 
Witness:     Nell  S.  McDonald,  Patrick  Foley, 

Detroit,  Michigan.  242  Lycaste   St., 

Detroit,  Michigan. 

Being  in  addition  to  the  settlement  receipt  signed  by  said-  Foley 
Feb.  17,  1914,  he  having  been  ready  to  work  Feb.  18,  but  not  actually 
starting  to  work  until  Feb.  22,  1914." 

The  $248.55  paid  claimant  for  the  intervening  time  between 
his  injury  and  resuming  work  was  clear  to  him  and  in  addi- 
tion to  all  expenses  of  his  care  and  medical  attendance  which 
were  assumed  and  paid  by  appellant. 

On  April  17,  1913,  claimant  filed  a  petition  with  the  Indus- 
trial Accident  Board,  reciting  briefly  the  facts  of  his  injury, 
the  compensation  and  care  received  until  discharged  from  the 
hospital,  his  resumption  of  work  as  watchman  for  appellant, 
stated  that  in  attempting  to  perform  his  duties  in  that  capac- 
ity his  leg  became  swollen  at  the  end  of  the  day's  work  and 
was  so  weak  that  he  was  unable  to  walk  any  great  distance  or 
be  on  his  feet  any  great  part  of  the  day  and — 

"That  he  consulted  an  eminent  physician  in  the  city  of  Detroit,  who 
states  that  while  the  results  obtained  by  the  Detroit  United  Rail- 
way's physician  have  been  good,  still  the  -injured  leg,  as  a  result  of 
the  aforesaid  injury,  is  now  one-half  inch  shorter  than  the  other  leg, 
and  that  your  petitioner  will  not  be  able  to  follow  any  occupation  in 
which  it  will  be  necessary  for  him  to  be  on  his  feet  any  great  portion 
of  the  day,  or  in  which  much  walking  or  lifting  is  required." 

For  which  reason  he  asked  the  Board  to  adjudge  him  fur- 
ther compensation. 

The  return  of  the  Industrial  Accident  Board  to  this  writ  of 
certiorari  does  not  traverse  nor  deny  the  facts  stated  in  ap- 
pellant's affidavit  on  which  the  writ  was  allowed.  It  briefly 
states  that  claimant  made  application  for  a  reopening  of  the 
case  and  an  award  of  further  compensation;  that  testimony 
was  taken  thereafter  by  deposition  at  the  instance  of  both 


356  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

parties,  after  which  a  hearing  was  had  on  July  8,  1915,  and 
the  award  complained  of  was  made.  "A  resume  of  such  testi- 
mony," copies  of  claimant's  petition  and  the  order  of  said 
board  are  attached  to  said  return  as  exhibits  and  part  of  said 
return.  Counsel  for  the  respective  parties  also  stipulated  in 
writing  to  the  same  as  "the  return  of  said  Board,"  with  ex- 
hibits attached  to  the  affidavit  for  writ  of  certiorari  consid- 
ered as  a  part  thereof.  The  material  parts  of  those  exhibits 
(3  in  number)  are  quoted  above.  No  findings  of  fact  or  con- 
clusions of  law  are  returned  and,  so  far  as  shown,  none  were 
made  or  filed  by  the  Board. 

Appellant's  two  principal  contentions  against  the  validity 
of  this  order  are  that  the  agreement  between  the  parties  after 
being  approved  by  the  Board  was  "final  and  binding"  under 
the  statute  and  the  Board  had  no  authority  to  re-open  the  case 
after  claimant  had  signed  a  final  settlement  receipt  in  full,  "in 
the  absence  of  fraud,  duress  or  mistake  being  alleged  and  prov- 
en as  a  basis  for  such  re-opening,"  and — 

"That  there  is  no  evidence  in  the  record  which  would  warrant  an 
award  to  claimant  of  any  further  compensation  as  it  is  undisputed  that 
at  the  time  of  the  filing  of  the  petition  claimant  was  earning  in 
respondent's  employ  in  a  shorter  period  of  time,  an  amount  equal  if 
not  greater  than  that  earned  by  him  prior  to  the  accident." 

The  act  clearly  favors  and  contemplates  an  agreement  be- 
tween the  parties  as  to  compensation  in  case  of  an  industrial 
accident  and  that  the  Board  in  its  supervisory  control  shall 
favor  and  approve  such  agreements  when  understandingly 
made,  without  fraud,  duress  or  undue  advantage.  (Section  5 
part  3).  An  attempt  to  reach  such  an  agreement  is  a  prere- 
quisite to  an  application  to  the  Board  for  an  arbitration  and 
award.  (Section  6  part  3).  It  is  questions  arising  under  the 
act,  "not  settled  by  agreement,"  which  the  Board  is  author- 
ized to  determine,  except  as  otherwise  provided.  (Sectioi 
10  part  3).  Section  14  of  part  3  provides: 

"Any    weekly    payment    under   this    act   may   be    reviewed    by    tl 
industrial  accident  board  at  the  request  of  the  employer,,  or  the  ii 


FOLEY   vs.    DETROIT   UNITED   RAILWAY.      .  357 

surance  company  carrying  such  risks,  or  the  Commissioner  of  In- 
surance as  the  case  may  be,  or  the  employe;  and  on  such  review  it 
may  be  ended,  diminished  or  increased,  subject  to  the  maximum  and 
minimum  amounts  above  provided,  if  the  board  finds  that  the  facts 
warrant  such  action." 

At  the  time  the  agreement  in  regard  to  compensation,  which 
the  Board  approved,  was  entered  into  claimant  was  lying  in 
the  hospital  totally  incapacitated  for  work  as  the  result  of  a 
compound  fracture  of  his  left  leg  sustained  while  in  appel- 
lant's employ.  Under  Sec.  9  part  3  of  the  act  he  was  entitled 
to  receive  from  his  employer  one-half  his  weekly  wages  while 
his  incapacity  for  work  resulting  from  the  injury  was  total, 
not  to  exceed  500  weeks.  This  agreement  stated  his  average 
weekly  wages  and  provided  he  should  receive  one-half  of  that 
amount  "per  week  payable  under  act."  This  was  just  what 
the  law  provided  as  applied  to  the  undisputed  facts  and  then 
existing  conditions,  and  nothing  more.  It  did  not  specify 
how  long  such  weekly  payments  should  continue,  though  an 
intent  to  cover  the  period  of  total  incapacity  might  be  infer- 
red. So  far  as  it  went  it  was  according  to  law  and  fixed  a 
weekly  basis  of  compensation  for  the  ascertained  total  inca- 
pacity. This  the  Board  approved.  But  it  made  no  provision 
for  the  unascertained  future  partial  incapacity  which  might 
follow  the  total,  or  for  any  lump  sum  which  should  be  paid  in 
final  settlement. 

The  approval  by  the  Board  of  this  manifestly  incomplete 
agreement,  in  view  of  the  time  when  made  and  the  nature  of 
the  injury,  did  not  divest  the  Board  of  jurisdiction  nor  de- 
prive it  of  its  general  supervisory  powers  in  material  matters 
necessarily  left  open  for  adjustment  before  final  disposition 
of  the  case.  The  settlement  receipt  in  full,  given  by  claimant 
before  he  resumed  work,  is  not  shown  to  have  been  filed  with  or 
approved  by  the  Board.  Had  it  been,  a  different  question 
would  confront  us  under  said  sec.  5  part  3  of  the  act. 

The  last  matter  in  the  case  brought  to  the  attention  of  the 
Board,  so  far  as  shown,  before  claimant  filed  his  petition  for 
additional  compensation  under  a  claim  of  partial  incapacity, 


358  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

was  an  agreement  for  weekly  payment  under  the  act  on  a 
basis  of  total  incapacity,  which  it  approved.  Section  14 
part  3  gives  the  Board  the  right,  if  it  finds  that  the  facts  war- 
rant such  action,  to  end,  diminish  or  increase  "any  weekly 
payment  under  this  act."  It  is  said  the  parties  interested  had 
settled  this  question  by  agreement,  as  evidenced  by  the  set- 
tlement receipt  claimant  signed,  but  to  "be  deemed  final  and 
binding  upon  the  parties  thereto"  under  the  act  it  was  neces- 
sary that  it  should  be  filed  with  and  approved  by  the  Board. 

Defendant's  second  contention  is  that,  if  it  be  found  the 
Board  had  authority  to  reopen  the  case,  no  award  could  be 
made  by  it  for  further  compensation  as  it  is  conceded  claim- 
ant at  the  time  of  filing  his  petition,  and  when  the  testimony 
was  taken  as  to  his  physical  condition,  was  and  had  been  since 
February  22,  1914,  earning  as  much  or  more  wages  than  he 
did  before  the  accident  causing  his  injury,  and  sec.  10  part  2 
of  the  act  provides: 

"While  the  incapacity  for  work  resulting  from  the  injury  is  partial, 
the  employer  shall  pay,  or  cause  to  be  paid,  as  hereinafter  provided, 
to  the  injured  employe  a  weekly  compensation  equal  to  one-half  the 
difference  between  his  average  weekly  wages  before  the  injury  and 
the  average  weekly  wages  which  he  is  able  to  earn  thereafter,  *  *  * 


If  this  were  the  only  and  controlling  provision  in  the  act 
upon  that  subject  appellant's  contention  could  not  be  ques- 
tioned; but  the  last  sentence  of  the  next  ensuing  section  (11), 
which  concludes  a  long  series  of  provisions  in  it  and  preceding 
sections  classifying  injuries,  treating  total  and  partial  inca- 
pacity, specifying  and  defining  weekly  rates,  time  payments 
shall  continue,  amount  of  compensation,  methods  of  arriving 
at  the  same,  etc.,  is  as  follows: 

"The  weekly  loss  in  wages  referred  to  in  this  act  shall  consist  of 
such  percentage  of  the  average  weekly  earnings  of  the  injured  em- 
ploye, computed  according  to  the  provisions  of  this  section,  as  shall 
fairly  represent  the  proportionate  extent  of  the  impairment  of  his 
earning  capacity  in  the  employment  in  which  he  was  working  at  the 
time  of  the  accident,  but  to  be  determined  in  view  of  the  nature  and 
extent  of  the  injury." 


FOLEY  vs.   DETROIT   UNITED   RAILWAY.  359 

Appellant  urges  that  the  provision  is  directly  contradictory 
of  Sec.  10  and  an  interpolation  which  means  nothing,  as 
''weekly  loss  of  wages"  is  not  mentioned  in  the  act.  While 
not  referred  to  in  exact  language,  in  substance  it  is  inevitably 
connected  with  and  treated  in  what  goes  before  touching  com- 
pensation for  incapacity  resulting  from  the  injury. 

Although  this  provision  is  apparently  restrictive,  we  do 
not  find  it  directly  contradictory  of  Sec.  10,  and  if  it  were, 
being  the  last  of  the  two  provisions  it  should  prevail  under 
the  general  rules  of  construction,  provided  either  must  be  dis- 
regarded. The  language  of  this  last  provision  is  plain,  and 
has  but  one  obvious  meaning,  designating  as  the  test  capac- 
ity to  earn  in  the  same  employment  in  which  the  employe  was 
injured.  That  under  this  rule  instances  may  arise  where  it 
works  inequitably  does  not  authorize  the  court  to  read  excep- 
tions into  it  or  modify  its  plain  language  defining  the  basis 
for  estimating  incapacity,  which  at  best  can  only  be  approxi- 
mated. If  the  method  ought  to  be  changed  or  exceptional 
cases  provided  for  the  remedy  rests  with  the  legislature. 

A  ready  disposition  of  this  case  is  embarrassed  by  total  ab- 
sence of  any  findings  of  fact  by  the  Board,  which  the  statute 
appears  to  contemplate  though  not  in  express  language  com- 
manding; (see.  12  part  3).  Counsel  have  stipulated  to  the 
return  as  satisfactory  and  "a  resume  of  such  testimony"  with 
the  order  of  award  made  by  the  Board  have  been  passed  up 
for  this  court  to  help  itself  to  what  it  can  find.  Technically 
the  order  contains  an  implied  finding  of  facts  legally  suffi- 
cient to  support  it  and  in  that  view  the  court  may  search  the 
testimony  to  ascertain  if  the  necessarily  inferred  facts  pre- 
sumptively found  have  evidential  support.  The  dates  when 
the  testimony  was  taken  are  not  disclosed  though  it  appears 
to  have  been  taken  at  intervals  between  the  time  of  filing 
claimant's  petition  and  the  hearing  and  most  of  it  while  claim- 
ant was  in  appellant's  employ.  But  wheij  recalled  for  fur- 
ther examination  some  weeks  later,  near  the  conclusion  of  the 
proofs,  claimant  disclosed  that  he  had  been  ''let  go"  about 
the  time  he  "blackened  this  fellow's  face,"  which  episode  re- 


360  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

suited,  as  he  stated,  in  his  taking  a  ride  to  the  county  jail  in 
a  patrol  wagon,  where  he  asserts,  however,  he  was  only  de- 
tained from  Saturday  night  until  2  o'clock  Sunday  afternoon. 
It  is  stated  without  denial  in  appellant's  affidavit  that  an 
investigation  of  charges  made  by  county  officials  and  a  ''pas- 
senger upon  whom  he  had  committed  a  trespass"  led  to  claim- 
ant's discharge  from  its  employ.  Just  what  appellant  claims 
for  the  fact  that  claimant  had  misbehaved  and  been  dis- 
charged is  not  clear,  and  what  weight  the  Board  gave  the 
fact  he  was  not  shown  to  be  employed  at  the  time  of  the  hear- 
ing is  not  apparent.  It  would  be  equally  competent  to  show 
that  after  claimant  filed  his  petition  appellant  had  arbitrarily 
discharged  him,  if  such  were  the  fact.  In  either  case  his  inca- 
pacity to  engage  in  the  employment  in  which  he  was  working 
at  the  time  of  the  accident  would  be  the  same,  and  the  pos- 
sibility of  either  contingency  but  illustrates  that  the  rule  ap- 
pellant contends  for  is  also  fallible,  and  open  to  contingencies 
which  might  operate  inequitably. 

To  sustain  its  award  the  Board  must  have  been  able  to  find 
from  competent  testimony  a  continuing  partial  incapacity  to 
properly  perform  the  work  of  a  motorman,  in  which  claimant 
was  engaged  at  the  time  of  the  accident.  There  is  testimony 
tending  to  sustain  such  a  finding.  Aside  from  claimant's 
own  testimony  as  to  continuing  pain,  weakness  and  swelling 
in  his  leg  which  rendered  it  difficult  for  him  to  be  upon  his 
feet  long  and  get  around  readily,  the  physicians  called  by  both 
sides  agree  that  he  had  a  shortening  of  the  leg  of  from  an  half 
to  three-quarters  of  an  inch  which  would  be  permanent,  and 
that  otherwise  it  would  be  months  if  not  years  before  it  would 
be  strong  and  normal,  if  ever;  that  in  its  condition  at  the 
time  they  testified  the  lost  percentage  of  normal  use  and 
strength  was  from  25  to  75.  Dr.  Dolman,  the  physician  who 
attended  and  .operated  upon  claimant  at  the  time  of  the  acci- 
dent and  cared  for  him  until  he  was  discharged  from  tl;e  hos- 
pital, called  as  a  witness  by  respondent,  testified  the  brokei 
limb  was  so  seriously  injured  that  "under  usual  circumstam 
the  injury  would  undoubtedly  have  caused  him  to  lose  his  1( 


FOLEY  vs.   DETROIT   UNITED   RAILWAY.  361 

by  amputation;"  that  he  however  decided  to  perform  an  oper- 
ation and  try  to  save  the  limb,  which  started  to  improve  some 
live  weeks  after  the  operation  and  ultimately  made  a  very 
.successful  recovery;  that  the  injured  leg  was  about  half  an 
inch  short  and  the  impairment  of  function  at  the  time  wit- 
ness was  testifying  was  presumably  25  per  cent,  and  not  more 
ihan  33  1-3 ;  that  when  claimant  left  the  hospital  he  "was  able 
to  wTalk  about  on  his  leg  with  difficulty.  He  could  put  his 
foot  down  and  bear  his  weight  on  the  broken  limb ;"  that  per- 
fect union  was  not  restored  and  circulation  had  not  fully  es- 
tablished itself  in  the  leg;  witness  would  say  it  would  re-es- 
tablish itself  so  that  claimant  would  be  able  to  work  event- 
ually as  a  laborer,  in  perhaps  a  couple  of  years.  The  testi- 
mony of  physicians  called  by  claimant  was  somewhat  along 
the  same  lines  but  on  the  whole  tending  to  show  a  greater  de- 
gree of  impairment  than  that  of  Dr.  Dolman,  and  touching 
his  ability  to  work  as  a  motorman  was  to  the  effect  that  his 
condition  would  detract  from  efficiency  and  it  would  be  dif- 
ficult for  him  to  work  in  that  capacity  successfully,  various 
reasons  being  given  therefor. 

The  agreement  approved  by  the  Board  only  provided  for  a 
weekly  payment  of  indefinite  duration,  which  was  discon- 
tinued without  its  approval.  Under  such  circumstances  we 
conclude  authority  yet  remained  with  the  Board  to  review  the 
matter  of  weekly  payment  and  diminish,  or  approve  of  end- 
ing the  same,  as  it  found  the  facts  warranted,  as  provided  in 
Sec.  14  part  3  of  the  act ;  and  having  such  authority  its  order 
has  support  in  testimony  tending  to  sustain  facts  essential  to 
its  validity. 

Its  order  is,  therefore,  affirmed. 


362  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

GEORGE  BISCHOFF, 

Applicant  and  Appellee, 
vs. 
AMERICAN  CAR  AND  FOUNDRY  COMPANY, 

Defendant  and  Appellant. 

COURSE  OF  EMPLOYMENT — ARISING  OUT  OF. 

Applicant  was  employed  as  a  moulder  in  respondent's  plant,  being 
in  charge  of  one  of  the  "floors,"  consisting  of  a  row  of  moulds. 
About  15  feet  above  the  floor  was  a  crane  run  by  electricity  and 
operated  backwards  and  forwards  and  up  and  down  by  appli- 
cant, as  might  be  necessary  in  his  work.  The  crane  got  out  of 
order  on  the  day  of  the  accident  and  applicant  notified  the  elec- 
trician whose  duty  it  was  to  make  repairs.  The  men  spoke  dif- 
ferent languages  and  applicant,  being  unable  to  satisfactorily  ex- 
plain the  trouble  to  the  electrician,  went  up  onto  the  crane  to 
point  out  the  trouble  to  him.  In  some  way  the  crane  was  set 
in  motion,  catching  plaintiff's  hand  and  practically  destroying  it. 

HELD:  That  applicant  went  outside  the  limits  of  his  employment 
by  climbing  upon  the  crane,  and  compensation  denied.  JJ.  BIRD, 
KUHN,  and  MOORE,  dissenting. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  that  Board  in  awarding  compensation  to  George 
Bischoff  for  injuries  received  while  in  the  employ  of  the 
American  Car  and  Foundry  Company.  Reversed. 

Harbour,  Field  d  Martin,  of  Detroit,  for  Applicant. 
Angell,  Bodman  &  Turner,  of  Detroit,  for  Defendant. 

PERSON,  J.  On  the  16th  day  of  September,  1913,  the  claim- 
ant was,  and  for  more  than  a  year  had  been,  employed  by  the 
American  Car  and  Foundry  Company,  as  a  moulder.  In  the 
forenoon  of  that  day  his  right  hand  was  caught  in  the  gear 
wheels  of  an  electric  crane  and  so  crushed  as  to  require  the 


BISCHOFF  vs.  AMERICAN  CAR  AND  FOUNDRY  CO.         363 

amputation  of  the  larger  portion  of  it.  The  committee  of  ar- 
bitration appointed  under  Act  No.  10  of  the  Public  Acts  of 
the  Extra  Session  of  1912,  having  found  the  claimant  entitled 
to  compensation,  and  the  amount  of  such  compensation  hav- 
ing been  increased  on  appeal  to  the  Industrial  Accident  Board, 
the  employer  brings  the  case  here  for  review,  insisting  that 
the  injury  received  by  the  employe  did  not  arise  "out  of  and 
in  the  course  of  his  employment ;"  -that  it  was  the  result  of  his 
own  "intentional  and  wilful  misconduct,"  and  that  the  com- 
pensation allowed  is  excessive. 

As  this  Act  provides  compensation  only  for  such  injuries 
as  are  received  in  the  course  of  the  employment,  and  then 
only  when  they  grow  out  of  the  employment,  and  as  injuries 
received  outside  the  employment  are  not  within  the  provis- 
ions of  the  Act  at  all,  it  must  follow  that  the  "intentional  and 
wilful  misconduct"  which  operates  to  debar  the  employe  from 
the  compensation  which  he  might  otherwise  receive,  refers  to 
such  misconduct  Avithin  the  scope  of  his  employment.  If  the 
injury  to  the  employe  was  not  received  "in  the  course  of  his 
employment,"  it  is  immaterial  whether  it  was  caused  by  his 
"intentional  and  wilful  misconduct,"  or  not. 

The  first  question,  therefore,  to  be  determined,  is  whether 
the  injury  received  by  claimant  arose  out  of  and  in  the  course 
of  his  employment.  And  in  this  connection  the  findings  of 
fact  made  by  the  Industrial  Accident  Board  and  .returned  to 
this  court,  being  well  supported  by  the  evidence  are  controll- 
ing so  far  as  they  go.  Such  findings  are  as  follows: 

"I.  On  the  16th  day  of  September,  1913,  George  Bischoff,  claimant 
and  appellee  was  employed  as  a  car  wheel  moulder  at  the  Detroit 
plant  of  the  American  Car  &  Foundry  Company,  a  New  Jersey  corpo- 
ration, engaged  in  the  manufacture  of  cars,  car  wheels,  etc.  He  was 
at  that  time  twenty-nine  years  of  age  and  had  been  in  the  employ  of 
the  appellant  three  and  one-half  years,  two  of  which  he  had  spent 
working  as  helper  to  a  moulder  and  one  and  a  half  of  which  he  spent 
working  as  a  moulder. 

"2.  The  foundry  in  which  appellee  worked  at  the  time  of  the  acci- 
dent was  divided  into  fourteen  'floors'  about  nine  feet  apart.  Each 
'floor'  consisted  of  a  row  of  moulds,  25  moulds  in  length,  located  on 
one  level  or  general  ground  floor  of  the  foundry.  A  moulder  was  in 


364  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

charge  of  each  one  of  these  'floors.'  At  a  distance  of  about  fifteen 
feet  above  each  'floor'  was  located  a  crane,  the  motive  power  of 
which  was  electricity,  240  volts  being  required  to  operate  it.  Appellee 
was  in  charge  of  a  'floor'  over  which  was  located  crane  No.  8,  three 
photographs  of  which  were  introduced  in  evidence  as  appellant's  Ex- 
hibits 'A,  B,  C.'  Prom  the  floor  appellee,  as  part  of  his  work,  oper- 
ated the  crane  forward  and  backward  and  up  and  down  as  might  be 
necessary  in  doing  his  work.  The  crane  could  be  reached  only  by 
climbing  a  brace  located  near  it  or  by  a  ladder  which  must  be  espec- 
ially placed  for  the  purpose. 

"3.  There  is  nothing  in  the  occupation  of  a  moulder  which  would 
require  him  to  go  upon  the  crane  for  the  purpose  of  repairing  it  should 
it  be  out  of  order,  a  machinist  and  electrician  being  employed  by 
appellant  to  make  the  necessary  repairs.  Appellee  understood  that 
he  was  employed  as  a  moulder  and  in  no  other  capacity.  That  all  his 
duties  relative  to  such  employment  were  ordinarily  to  be  performed 
on  the  floor,  that  he  must  use  the  crane  to  do  his  work;  that  if  the 
crane  was  out  of  order  and  he  could  not  use  it  or  operate  it,  he  should 
report  it  to  the  machinist  or  electrician  and  if  they  could  not  be 
found  be  should  sit  down  or  go  home. 

"4.  Instructions  had  been  given  by  the  superintendent  to  the  fore- 
man to  allow  no  one  but  the  men  designated  for  such  work  to  go 
upon  the  crane,  and  these  instructions  had  been  given  to  the  moulders 
by  the  foreman,  but  appellee  could  not  speak  nor  fairly  understand 
either  English  or  the  language  of  his  foreman.  Appellee  had  in  fact 
gone  up  to  fix  or  oil  the  crane  several  times  before  the  date  of  his 
injury. 

"5.  A  short  time  before  t  the  injury,  appellee  discovered  that  the 
crane  was  out  of  order  and  reported  to  the  machinist,  who  was  also 
a  foreman,  that  the  crane  was  not  working  well,  because  the  brake 
was  too  loose.  Appellee  is  a  German  and  the  machinist  is  a  Croatian; 
appellee  could  not  talk  with  the  machinist  very  well,  because  they 
did  not  speak  the  same  language,  yet  he  could  indicate  in  broken 
English  that  'the  brake  is  too  loose,'  and  by  showing  the  machinist 
say  enough  in  English  to  inform  him  what  the  trouble  with  the 
crane  was. 

"6.  While  the  machinist  was  up  on  the  crane  looking  for  the 
trouble,  appellee  not  being  able  to  make  him  fully  understand  in 
English,  went  up  the  ladder  and  got  off  where  the  machinist  was,  to 
point  out  to  him  where  the  trouble  was. 

"7.  After  being  on  the  crane  five  minutes  appellee  started  to  go 
down  the  ladder.  In  some  way  the  machinist,  or  appellee,  set  the 
machinery  in  motion  and  appellee's  hand  was  caught  in  certain  gear 
wheels  and  all  that  part  including  the  four  fingers  was  amputated 
from  a  point  on  the  metacarpal  bone  of  the  little  finger  about  an  inch 


BISCHOFF  vs.  AMERICAN  CAR  AND  FOUNDRY  CO.         365 

and  three-quarters  below  the  wrist  joint  diagonally  across  the  hand  to 
a  point  two  and  a  half  inches  below  the  wrist  joint,  leaving  the  thumb 
entirely  uninjured. 

"8.  It  was  mutually  conceded  by  the  parties,  that,  if  appellee  is  en- 
titled to  anything,  he  is  entitled  to  the  maximum  compensation  of 
$10.00  a  week." 

If  a  workman  is  injured  while  voluntarily  doing  something 
quite  outside  the  scope  of  the  work  he  is  employed  to  do,  it 
cannot  well  be  said  that  such  injury  "arises  out  of  and  in 
the  course  of  his  employment."  This  is  illustrated  by  the  old 
case  of  the  boy  who  was  engaged  to  .hand  balls  of  clay  in 
moulds  to  a  moulder,  and  was  told  not  to  touch  the  machin- 
ery; but  having  nothing  to  do  for  the  moment,  he  did  at- 
•  tempt  to  clean  the  machinery,  and  was  injured.  It  was  neces- 
sarily held  that  the  injury  did  not  "arise  out  of  and  in  the 
course  of  his  employment,'7  Lowe  vs.  Pearson,  W.  C.  O.  5.  It 
was  also  held  that  the  injury  did  not  arise  out  of  and-  in  the 
course  of  the  employment  where  a  girl  left  her  work  to  start 
an  engine  when  the  person  whose  particular  duty  it  was  to  do 
so  happened  for  the  moment  to  be  absent,  Losh  v.  Evans  & 
Company,  5  W.  C.  C.  17. 

In  other  words  the  work  which  one  is  employed  to  do,  when 
construed  in  a  reasonably  broad  and  comprehensive  way  does 
limit  and  mark  out  "his  employment,"-  within  the  meaning  of 
the  statute.  Of  course,  the  scope  of  such  particular  employ- 
ment may  be  enlarged  for  the  time  being  by  the  directions  of 
some  superior  who  has  authority ;  and  in  the  case  of  an  actual 
emergency  it  may  be  held  that  any  reasonable  attempt  to  pre- 
serve the  employer's  property  is  within  the  general  lines  of  an 
employe's  duty.  But,  ordinarily,  the  scope  of  a  workman's 
employment  is  defined  by  the  things  he  is  employed  to  do, 
and  the  things  reasonably  and  fairly  incident  thereto. 

Notice  must  be  taken  that  a  factory  of  today  usually  in- 
cludes within  the  field  of  its  operations  many  fairly  distinct 
lines  of  work,  from  that  of  the  roustabout  engaged  in  the  or- 
dinary labor  that  almost  any  one  may  perform,  to  that  of  the 
expert  mechanic  which  can  be  done  safely  by  those  only  with 


366  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

skill  and  experience.  The  difference  between  these  various 
kinds  of  work  was  always  recognized  by  the  common  law,  and 
it  was  held  to  be  negligence  for  the  master  to  require  of  the 
servant,  without  warning  and  instructing  him,  the  perform- 
ance of  work  outside  of  and  more  dangerous  than  that  which 
the  latter  had  contracted  to  perform.  Such  classification  of 
work  exists  in  the  very  nature  of  things,  and  as  much  under 
the  statute  as  at  common  law.  Its  recognition  is  required  by 
any  proper  organization  of  a  factory,  not  only  for  efficiency, 
but  as  well  for  the  purpose  of  guarding  against  accident  and 
injury.  And  if  a  workman,  when  there  is  no  emergency, 
should,  of  his  own  volition,  see  fit  to  intermeddle  with  some- 
thing entirely  outside  the  work  for  which  he  is  employed,  he 
ought  not  to  be  allowed  compensation  upon  the  mere  plea  that 
he  thought  his  act  would  be  for  the  benefit  of  his  employer. 
That  plea  may  be  of  value  under  some  circumstances,  but  it 
cannot  authorize  an  employe  to  voluntarily  take  upon  him- 
self the  performance  of  work  for  which  he  was  not  employed. 

In  the  case  at  bar  the  crane,  in  connection  with  which  the 
accident  occurred,  was  located  on  beams  some  15  feet  above 
the  floor  where  the  claimant  was  required  to  work.  It  could 
be  reached  only  by  use  of  a  ladder  to  be  obtained  and  placed 
for  that  purpose,  or  by  climbing  upon  a  brace  which  was  not 
intended  for  such  use.  Its  location  was  as  separate  and  dis- 
tinct from  the  floor  where  the  claimant  worked  as  if  it  had 
been  in  another  room,  or  in  another  building.  The  crane  was 
operated  by  electricity,  and  240  volts  were  required  for  that 
purpose.  It  was  dangerous  to  get  upon  it,  or  to  intermeddle 
with  it,  as  is  stated  repeatedly  in  the  testimony  and  is  shown 
by  the  accident  itself.  And  this  the  claimant  must  have  known 
as  well  as  anybody.  Two  experts  were  employed  by  the  com- 
pany for  the  particular  purpose  of  repairing  the  cranes  if 
they  should  get  out  of  order. 

It  is  expressly  found  by  the  Industrial  Accident  Board,  and 
\vc  are  bound  by  the  finding,  that  the  claimant  understood  he 
was  employed  as  a  moulder,  and  in  no  other  capacity;  and 
that  there  was  nothing  in  the  occupation  of  a  moulder  which 


BISCHOFP  vs.  AMERICAN  CAR  AND  FOUNDRY  CO. 


361; 


rould  require  him  to  go  upon  the  crane  for  the  purpose  of  re- 
>airing  it  should  it  be  out  of  order.  A  more  definite  and  ex- 
)licit  finding  as  to  what  was  within  the  scope  of  his  duties, 
and  what  \vas  without  such  scope,  could  not  well  be  made. 

The  Industrial  Accident  Board  also  finds  that  instructions 
i ad  been  given  by  the  superintendent  to  the  foreman  to  allow 
LO  one  but  the  men  designated  for  such  work  to  go  upon  the 
>rane,  and  that  these  instructions  had  been  given  to  the  moul- 
iers  by  the  foreman.  The  superintendent  testifies  that  one 
reason  for  these  instructions  was  the  safety  of  the  moulders. 
It  is  true  the  Board  also  finds  that  the  claimant  could  not 
•speak  nor  fairly  understand  either  English  or  the  language 
)f  the  foreman,  but  it  makes  no  express  finding  as  to  whether 
claimant  did  or  did  not  actually  and  in  fact  understand 
these  instructions.  Whether  the  claimant  really  understood 
hem  or  not,  he  certainly  did  understand  from  the  foreman 
that  he  was  to  report  to  the  machinist  or  to  the  electrician 
any  defect  in  the  operation  of  the  crane,  and  if  they  could 
lot  be  found  that  he  should  sit  down  or  go  home.  This  is 
found  by  the  Board  from  his  own  testimony. 

On  the  day  of  the  injury  the  crane  used  by  claimant  in  his 
work  did  not  operate  properly  and  he  reported  it  to  the  ma- 
chinist. It  does  not  appear  from  the  claimant's  testimony 
that  he  had  any  difficulty  in  making  the  machinist  understand 
the  trouble  with  the  crane.  He  says  that  he  told  the  machinist 
[hat  it  was  not  good  and  that  the  brake  was  too  loose.  There- 
upon the  machinist  got  a  ladder  and  climbed  upon  the  crane 
to  repair  it.  After  the  machinist  had  got  upon  the  crane  the 
claimant  followed  him  up  the  ladder  and  also  up  on  the  crane. 
No  communication  whatever  between  the  two  had  been  at- 
tempted after  the  machinist  had  started  up  the  ladder,  and 
while  the  claimant  was  on  the  floor.  In  other  words  the  claim- 
ant did  not  climb  up  to  and  upon  the  crane  because  of  any 
failure  to  make  the  machinist  understand  anything  he  was  try- 
ing to  tell  him  at  the  time.  What  the  claimant  did,  after  get- 
in;.'  upon  the  crane,  was  to  point  out  to  the  machinist  what 
claimant  thought  ought  to  be  done  in  making  the  repairs.  He 


368  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

did  not,  apparently,  go  up  for  the  purpose  of  reporting  the 
condition  of  the  crane,  but  to  suggest  to  the  machinist  what 
the  latter  ought  to  do  to  remedy  the  difficulty.  The  claimant 
appears  to  have  fully  understood  the  danger  of  being  on  the 
crane,  because  he  says  that  as  soon  as  he  found  the  switch 
had  not  been  opened  he  at  once  started  to  go  down.  In  doing 
this  he  placed  one  hand  upon  the  large  wheel,  when  in  some 
way  the  machinery  was  started,  and  his  hand  was  crushed. 

The  very  thing  that  the  claimant  attempted  to  do,  was  the 
very  thing  that  the  Industrial  Accident  Board  has  expressly 
found  to  have  been  outside  the  limits  of  his  employment.  The 
finding  of  the  Board  is — "'There  is  nothing  in  the  occupation 
of  a  moulder  which  would  require  him  to  go  upon  the  crane 
for  the  purpose  of  repairing  it  should  it  be  out  of  order,  a 
machinist  and  an  electrician  being  employed  by  appellant  to 
make  the  necessary  repairs.  Appellee  understood  that  he  was 
employed  as  a  moulder  and  in  no  other  capacity."  The  very 
thing  he  did  do  was  to  climb  upon  the  crane,  not  for  the  pur- 
pose of  reporting  that  it  was  out  of  order,  but  to  direct  the 
machinist  in  the  performance  of  his  duty.  And  he  did  this, 
well  knowing  the  danger  to  which  he  was  subjecting  himself. 
In  the  face  of  the  express  findings  of  the  Board,  which,  as  we 
have  said,  are  warranted  by  the  evidence,  it  does  not  help 
claimant  any  that  on  several  previous  occasions  also  he  had 
gone  outside  the  limits  of  his  employment  by  climbing  upon 
the  crane. 

The  orders  allowing  compensation  must  be  reversed  and  set 
aside. 

BROOKE,  OSTRANDER,  STONE  and  STEERE,  JJ.  concurred  with 
PERSON,  J. 

BIRD,  J.  (Dissenting).  The  sixth  finding  of  fact  of  the  In- 
dustrial Accident  Board  was: 


"While  the  machinist  was  up  on  the  crane  looking  for  the  trouble, 
appellee  not  being  able  to  make  him  fully  understand  in  English, 
went  up  the  ladder  and  got  off  where  the  machinist  was,  to  point  out 
to  him  where  the  trouble  was." 


BISCHOFF  vs.  AMERICAN  CAR  AND  FOUNDRY  CO.          369 

This  finding  of  fact  seems  to  me  to  be  justified  by  the  rec- 
ord. Claimant  did  not  go  up  on  the  crane  to  repair  the  de- 
fect in  violation  of  the  rules.  He  went  there  merely  to  point 
out  the  defect  which  he  was  unable  to  describe  in  words  to  the 
machinist.  To  do  so  was  to  hasten  the  repair  of  the  machine, 
which  ordinarily  would  be  to  the  advantage  of  both  claim- 
ant and  master.  I  am  of  the  opinion  that  claimant's  conduct 
should  not  be  characterized  as  "intentional  and  wilful  mis- 
conduct." Neither  am  I  of  the  opinion  that  we  should  hold 
that  claimant,  in  going  upon  the  crane,  under  such  circum- 
stances, was  acting  outside  of  the  scope  of  his  employment. 
The  cases  cited  by  Mr.  Justice  Person  on  this  question  were 
instances  where  the  servant  left  his  particular  work  and  med- 
dled with  machinery  with  which  he  had  nothing  to  do.  The 
machine  in  the  present  case  was  operated  by  claimant.  When 
it  was  out  of  repair  his  work  stopped.  He  knew  where  the  de- 
fect was;  the  machinist  did  not  for  the  moment.  In  an  at- 
tempt to  point  out  the  defect  claimant  was  injured.  His 
effort  was  made  in  furtherance  of  the  master's  business,  and  it 
should  not  deprive  him  of  the  award. 

The  finding  of  the  Industrial  Accident  Board  is  affirmed. 

KUHN,  and  MOORE,  JJ.  concurred  with  BIRD,  J. 
47 


370  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

MARY  LINDSTEADT, 

Applicant  and  Appellee, 
vs. 
LOUIS  SANDS  SALT  &  LUMBER  COMPANY, 

Respondent   and   Appellant. 

CIRCUMSTANTIAL  EVIDENCE. 

Applicant's  decedent  was  employed  in  a  building  called  the  "hog- 
house"  in  respondent's  plant,  his  duties  being  to  keep  the  saw- 
dust and  refuse  passing  into  the  conveyor  which  carried  the  same 
to  the  fireroom  for  use  under  the  boilers.  The  refuse  was  brought 
from  the  mill  into  the  hog-house  by  a  conveyor  which  dropped  it 
from  a  point  about  53  feet  above  the  floor,  naturally  forming  itself 
into  a  conical  pile  and  slipping  down  as  the  size  of  the  pile  in- 
creased. On  the  day  of  decedent's  death,  respondent's  foreman 
went  into  the  hog-house  at  20  minutes  to  3  o'clock  in  the  morning 
and  talked  with  decedent  about  5  minutes  he  being  apparently  in 
normal  health.  At  5  minutes  past  3,  respondent's  foreman  re- 
turned to  the  hog-house,  and  not  seeing  decedent  made  search  for 
him  and  found  his  body  under  the  refuse,  it  being  covered  at  the 
head  by  a  depth  of  about  6  inches  and  at  the  feet  to  a  depth  of 
36  inches.  The  evidence  as  to  how  decedent's  death  was  caused 
was  entirely  circumstantial. 

HELD:  That  the  circumstances  shown  were  sufficient  to  justify  and 
support  the  conclusion  of  the  Board  that  death  was  caused  by  a 
sudden  fall  of  the  refuse  which  covered  the  body  and  apparently 
caused  death  from  suffocation. 


Certiorari  to  the  Industrial  Accident  Board  to  review  the 
action  of  that  board  in  awarding  compensation  to  Mary  Lind- 
steadt  for  the  death  of  her  husband  while  in  the  employ  of 
Louis  Sands  Salt  &  Lumber  Company.  Affirmed. 

Howard  L.  Campbell,  of  Manistee,  for  applicant. 
P.  T.  Glassware,  of  Manistee,  for  respondent. 


LINDSTEADT  vs.  LOUIS  SANDS  SALT  &  LUMBER  CO.       371 

BROOKE,  J.  In  this  proceeding  defendant  reviews  the  de- 
termination of  the  Industrial  Accident  Board  by  the  terms  of 
which  they  are  compelled  to  pay  to  the  applicant  the  sum  of 
$6.17  per  week  for  a  period  of  300  weeks,  as  compensation  for 
the  death  of  one  William  Lindsteadt,  husband  of  the  appli- 
cant. The  findings  of  fact  and  law  made  by  the  Industrial  Ac- 
cident Board  follow: 

"1.  That  the  defendant,  the  Louis  Sands  Salt  &  Lumber  Company, 
is  a  corporation  with  its  principal  offices  and  place  of  business  in  the 
City  of  Manistee,  Michigan,  and  is  and  has  been  for  a  number  of 
years  engaged  in  the  manufacture  of  lumber  and  salt  at  its  mill  and 
plant  in  Manistee,  and  was  so  engaged  in  carrying  on  said  business 
on  and  before  the  9th  day  of  May,  1914. 

"2.  That  a  large  part  of  the  sawdust  from  the  logs  sawed  in  de- 
fendant's mill,  as  well  as  certain  other  refuse  from  said  logs  was 
used  by  said  defendant  as  fuel  under  its  boilers  in  its  fire  room  for 
the  purpose  of  generating  steam  for  operating  said  plant  and  for  this 
purpose  said  refuse  was  passed  through  a  grinding  hog  at  or  near 
said  saw-mill  and  said  refuse  after  being  so  ground,  was  carried  from 
said  hog  by  a  conveyor  to  a  building  nearby,  designated  and  called 
a  hog  or  fuel  house,  into  which  said  refuse  was  dropped  to  the  floor 
beneath,  a  distance  of  about  53  feet  from  said  conveyor,  which  ex- 
tended inside  of  said  hog  house  about  six  feet  and  at  the  top  of  the 
same  and  near  to  the  west  wall  thereof,  said  hog  house  being  of 
wrought  iron  construction,  and  30  feet  wide  and  50  feet  long,  and 
oval  in  shape. 

"3.  That  said  refuse  carried  into  said  hog  house  by  said  conveyor 
was  removed  therefrom  to  the  fire  room  for  use  under  said  boilers  by 
means  of  another  conveyor  underneath  the  floor  of  said  hog  house,  by 
which  said  refuse  was  carried  to  said  fire  room;  that  said  refuse 
coming  into  said  hog  house  through  said  conveyor  from  the  mill  con- 
sisted of  about  one-third  sawdust,  the  rest  of  said  material  being  small 
pieces  of  wood  and  shavings  as  it  was  ground  in  said  hog;  that  as 
said  refuse  fell  from  the  conveyor  at  the  top  of  said  fuel  house  to  the 
floor  thereof  it  assumed  a  cone-shape,  piling  up  against  the  west  wall 
of  said  building  and  slanting  toward  the  opposite  wall  thereof  near  the 
entrance  to  the  same;  that  over  the  conveyor  underneath  the  floor  of 
said  fuel  house,  which  said  conveyor  extended  along  the  east  side  or 
wall  thereof,  were  several  loose  planks  about  three  feet  long  and  ten 
inches  wide,  which  were  moved  forward  in  such  a  way  as  to  permit 
the  refuse  in  said  building  to  fall  by  its  own  weight  through  the 
spaces  between  said  planks  and  into  the  conveyor  underneath. 


372  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"4.  That  said  refuse  was  usually  damp,  having  come  from  logs 
which  were  taken  out  of  the  lake  day  by  day  and  into  the  mill  for 
sawing;  that  as  said  loose  planks  over  said  conveyor  were  removed, 
the  said  refuse  fell  into  said  conveyor  by  its  own  weight,  thereby 
leaving  a  pile  or  bank  of  said  refuse  on  each  side  of  said  conveyor 
which,  as  the  volume  of  said  refuse  in  said  building  decreased,  would 
be  scraped  or  raked  into  said  conveyor  by  a  "man  employed  for  that 
purpose;  that  said  refuse  was  conveyed  into  said  building  during  the 
day  time  while  said  sawmill  was  in  operation  and  was  carried  out  of 
said  building  to  the  fire  room  during  the  night  by  the  night  opera- 
tions; that  is,  from  six  o'clock  in  the  evening  until  six  o'clock  the 
next  morning;  that  no  refuse  was  coming  into  said  fuel  house  at 
night. 

"5.  That  the  entrance  to  said  fuel  house  is  shown  on  the  map  or 
diagram  which  was  marked  Respondent's  Exhibit  A,  and  received  in 
evidence  upon  the  hearing  of  said  cause  before  the  Board  of  Arbitra- 
tion, and  it  was  conceded  by  counsel  that  said  plat  or  diagram  was 
substantially  correct  as  to  measurements  and  as  to  such  other  things 
as  it  pretended  to  show. 

"6.  That  the  deceased,  William  Linsteadt,  had  been  employed  in 
and  about  the  defendant's  mill  for  a  period  of  three  years  and  up- 
wards prior  to  May  9th,  1914,  and  for  42%  days  prior  to  said  date 
was  employed  by  said  defendant  in  said  fuel  house  on  the  night 
shift  and  was  so  employed  on  May  8th  and  9th,  1914;  that  said  de- 
ceased was  nearly  65  years  of  age  and  had  been  regular  in  his  work 
during  the  said  42%  days. 

"7.  That  the  work  and  duties  of  the  deceased  required  him  to  keep 
said  refuse  in  said  fuel  house  passing  and  falling  in  said  conveyor 
to  be  carried  to  the  fire  room  for  use  under  said  boilers  and  for  this 
purpose  he  was  furnished  a  hook  with  which  to  scrape,  pull  or  rake 
said  refuse  from  said  pile  into  the  conveyor  when  the  volume  of  the 
same  had  so  diminished  that  it  would  not  fall  into  said  conveyor  by 
its  own  weight;  that  the  planks  over  said  conveyor  near  the  en- 
trance or  door  of  said  fuel  house  were  usually  first  removed  so  that 
said  refuse  at  or  near  that  side  of  said  building  would  first  fall  into 
said  conveyor  and  as  further  planks  were  removed  approaching  further 
into  said  pile  of  refuse,  the  said  refuse  would  continue  to  fall  into 
said  conveyor  of  its  own  weight,  so  that  as  the  quantity  or  volume  of 
said  refuse  diminished  in  said  building  the  said  deceased  was  required 
to  pull,  scrape  or  rake  said  refuse  at  the  sides  of  said  conveyor  down 
into  the  same  so  that  it  would  be  carried  by  said  conveyor  to  said 
fire  room  and  that  the  said  deceased  during  the  night  of  May  8th 
and  the  early  morning  of  May  9th  was  so  engaged  in  performing  the 
said  duties  in  the  fuel  house. 


LINDSTEADT  vs.  LOUIS  SANDS  SALT  &  LUMBER  CO.       373 

"8.  That  one  Christ  Radtke,  foreman  of  the  night  shift  at  defend- 
ant's mill,  went  into  the  hog  house  at  20  minutes  of  three  in  the 
morning  of  May  9th,  and  talked  with  Lindsteadt  about  five  minutes, 
who,  at  that  time  was  standing  over  or  near  said  conveyor  raking 
said  refuse  into  the  conveyor,  the  floor  at  or  near  the  entrance  at  that 
time  being  clear  for  a  considerable  space  of  said  refuse,  said  refuse 
being  about  8  feet  high  on  one  side  of  said  conveyor  and  3  feet  high 
on  the  other  side,  and  that  the  deceased  then  stood  about  15  feet  from 
the  entrance  door  and  apparently  was  in  normal  condition  and  health. 

"9.  That  at  five  minutes  after  three,  said  Radtke  returned  to  the 
fuel  house  with  one  Patulski  and  deceased  was  not  then  visible,  his 
body  was  found  by  Radtke  and  Patulski  a  minute  or  two  afterwards 
underneath  said  refuse  with  his  head  about  six  inches  from  the  door 
and  his  feet  about  six  feet  from  the  door  or  entrance  and  about  nine 
feet  from  where  he  stood  when  Radtke  had  last  seen  him  alive  about 
twenty  minutes  previous. 

"10.  That  the  deceased  lay  on  his  back  with  face  upwards,  his 
mouth  was  lightly  open,  with  a  chew  of  tobacco  therein,  into  which 
sawdust  had  fallen;  there  was  also  sawdust  in  his  nostrils,  eyes  and 
ears;  there  was  about  six  inches  of  said  refuse  over  his  face  and  about 
36  inches  deep  over  his  feet,  the  entire  body  being  covered  with  said 
refuse;  both  legs  were  straight,  one  heel  resting  over  or  near  a  space 
between  said  loose  boards,  both  arms  were  straight  alongside  of  his 
body,  the  hook  he  had  been  using  in  his  work  lay  near  him  in  said 
refuse;  the  floor  underneath  his  body  was  clear  and  free  from  saw- 
dust and  he  was  found  to  be  fully  clothed. 

"11.  That  said  refuse  at,  near  or  over  the  body  of  said  deceased, 
showed  no  indications  of  any  disturbance  or  any  struggle  en  the  part 
of  deceased. 

"12.  That  there  was  no  injury,  wound,  cut,  abrasion  or  external 
injury  of  any  kind  or  nature  upon  the  body  of  deceased. 

"13.  That  the  features,  limbs  or  body  of  said  deceased  were  not 
distorted  in  any  manner  whatsoever. 

"14.  That  an  inquest  was  held  at  the  mill  of  defendant  soon  after 
the  body  was  discovered  and  after  said  inquest  said  body  was  removed 
to  undertaking  parlors  where  at  about  6:00  in  the  morning  an  arterial 
injection  of  standard  embalming  fluid  was  made  into  said  body  im- 
mediately after  the  face  of  the  said  deceased  had  been  washed  and 
shaved  by  one  Cron,  licensed  embalmer. 

"15.  That  the  defendant  company  during  the  morning  of  May  9th, 
1914,  made  three  requests  of  the  claimant  and  the  family  of  deceased 
that  an  autopsy  be  held  for  the  purpose  of  determining  the  cause  of 
death  of  deceased  which  were  denied  and  refused  by  said  claimant 
and  said  family  although  the  said  defendant  offered  to  pay  the  entire 
expenses  of  the  same. 


374  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

"16.  That  application  was  made  by  the  President  of  defendant's 
company,  R.  W.  Smith,  to  this  Board  by  telephone  and  by  letter 
during  the  morning  of  said  May  9th,  1914,  asking  said  Board  to  order 
and  direct  that  an  autopsy  be  held  for  the  purpose  of  determining  the 
cause  of  death  of  said  deceased,  and  that  this  Board  advised  the  said 
defendant  that  it  had  no  authority  to  order  an"  autopsy. 

"17.  That  the  body  of  said  deceased  between  the  hours  of  six 
o'clock  in  the  morning  and  noon  of  the  said  9th  day  of  May,  was  ex- 
amined by  three  physicians  and  that  it  was  the  opinion  of  the  medi- 
cal witnesses  that  said  deceased  died  from  one  of  the  forms  of  heart 
disease  and  not  from  strangulation,  suffocation,  or  asphyxiation. 

"18.  That  the  deceased  had  never  complained  to  the  claimant  or 
their  family  of  having  any  trouble  with  his  heart,  and  had  never 
been  treated  therefor  as  far  as  his  family  know. 

"19.  That  the  average  daily  wage  of  said  deceased  during  the  42% 
days  he  was  employed  by  said  defendant  in  said  fuel  house  was  $1.90; 
that  previous  to  the  time  deceased  was  employed  in  the  fuel  house 
he  was  employed  at  various  work  about  the  mill  and  plant  of  defend- 
ant company  and  from  May  10th,  1913,  to  May  10th,  1914,  deceased  had 
received  a  total  of  $540.49,  or  an  average  weekly  wage  of  $10.39,  dur- 
ing the  year  prior  and  immediately  preceding  his  injury. 

"20.  That  it  was  agreed  by  counsel  that  one  cubic  yard  of  the 
refuse  in  said  fuel  house  wrould  weigh  600  pounds. 

FINDINGS  OF  LAW. 

"From  the  foregoing  we  find  that  the  injury  or  death  of  deceased 
arose  out  of  and  in  the  course  of  his  employment  in  accoi  dance  with 
Part  2  of  Sec.  1,  Act  10,  Public  Acts  of  1912,  and  that  compensation 
shall  be  awarded  accordingly;  that  his  average  daily  wage  during  the 
42%  days  deceased  was  employed  in  said  fuel  house  was  $1.90,  and 
the  award  of  the  Committee  of  Arbitration  is  accordingly  affirmed." 

The  evidence  taken  before  the  arbitrators  is  made  a  part  of 
their  return  by  the  Industrial  Accident  Board.  The  following 
additional  facts  may  be  gathered  from  a  perusal  of  the  evi- 
dence. 

The  coroner  who  conducted  the  inquest  testified: 

"The  face  of  Mr.  Linsteadt  was  discolored,  pretty  much  black." 

The  undertaker  who  prepared  the  body  for  burial,  gave  the 
following  testimony: 


LINDSTEADT  vs.  LOUIS  SANDS  SALT  &  LUMBER  CO.       375 

"I  found  the  mouth  packed  with  sawdust,  not  exactly  tight,  but  as 
much  as  could  be  gotten  into  it.  There  was  some  in  his  throat,  eyes 
and  nostrils.  The  sawdust  in  his  eyes  was  between  the  lid  and  the 
eye  ball.  I  did  not  notice  much  out  of  the  ordinary  as  far  as  any  dis- 
coloration of  the  man's  face.  *  *  *  The  effect  of  embalming  fluid 
when  injected  in  the  human  body  has  a  tendency  to  bring  it  back  to  a 
natural  color.  *  *  *  I  could  not  state  what  he  died  from.  My  idea 
is  that  suffocation  is  what  I  understood.  My  common  sense  would 
tell  me  that.  *  *  *  I  have  never  studied  medicine  and  wouldn't  be 
able  to  state  what  he  died  from." 

Dr.  King,  sworn  on  behalf  of  the  defendant,  testified: 

"I  would  say  that  it  would  be  very  strong  evidence  that  he  did  not 
die  of  strangulation  or  asphyxiation.  *  *  *  There  would  be  dis- 
coloration of  the  features.  *  *  *  There  would  be  no  way  of  finding 
out  whether  he  died  of  heart  disease  without  an  autopsy.  There  may 
be  or  may  not  be  a  struggle  from  death  of  heart  disease." 

Dr.  Kamsdell,  a  witness  for  the  defendant,  testified: 

"Without  an  autopsy  it  would  be  impossible  to  determine  whether 
he  died  from  heart  disease  or  other  cause.  *  *  *  I  have  attended 
persons  dying  of  heart  failure  at  their  bed  side  and  the  cessation  of 
breathing  usually  starts  immediately.  A  very  slow  intake  of  air, 
you  can  hardly  recognize  it.  They  will  breathe  very  slow  and  then 
(illustrating)  out,  with  just  a  natural  exhaustion.  The  lungs  will 
suck  in  a  little  air,  but  there  will  be  no  decided  breathing. 

"Q.     Mouth  usually  open  or  closed? 

"A.     It  relaxes. 

"When  I  saw  the  deceased  he  had  no  sawdust  in  his  mouth.  A 
man  dying  of  heart  trouble,  I  doubt  whether  his  breathing  would  be 
of  sufficient  force  to  draw  sawdust  into  his  mouth  and  thoroughly 
clog  it." 

The  claimant's  daughter  testified: 

"I  examined  father's  face  and  body  after  the  body  was  returned  to 
the  house.  I  looked  at  him  the  next  morning  and  his  face  looked 
very  nice.  It  was  white  but  under  his  arms,  he  was  in  the  casket,  and 
I  pushed  back  his  coat  sleeve,  and  the  skin  was  dark  looking  and  back 
of  his  ears  had  a  purple  look." 


It  is  the  claim  of  the  appellant  that  the  record  contains  ab- 
solutely no  evidence  from  which  the  Industrial  Accident  Board 


376  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

could  lawfully  draw  the  inference  that  the  deceased  met  his 
death  as  the  result  of  an  injury  arising  out  of  and  in  the 
course  of  his  employment.  Reference  is  made  to  the  case  of 
McCoy  v.  Michigan  Sugar  Co.,  180  Mich.  454,  where  we  said: 

"The  burden  of  furnishing  evidence  from  which  the  inference  can 
be  legitimately  drawn  that  the  injury  arose  'out  of  and  in  the  course 
of  his  employment'  rests  upon  the  claimant.  *  *  *  If  an  inference 
favorable  to  the  applicant  can  only  be  arrived  at  by  a  guess  the  appli- 
cant fails.  The  same  thing  happens  where  two  or  more  inferences 
equally  consistent  with  the  facts  arise  from  them." 

See  also  Hills  v.  Blair,  182  Mich.  20. 

Appellant's  contention  is  stated  in  the  following  language: 

"In  applying  the  foregoing  principles  to  the  facts  in  the  case  at 
bar,  the  inquiry  arises,  do  the  facts  as  contained  in  the  Board's  find- 
ings of  facts  establish  by  the  burden  of  proof  the  right  of  applicant 
to  compensation  for  the  death  of  deceased?  The  right  of  the  parties 
to  this  appeal  is  determined  by  this  finding  of  facts  by  the  Indus- 
trial Board.  They  are  binding  and  conclusive  upon  the  parties  in  this 
proceeding  for  review,  unless  there  is  no  evidence  at  all  upon  which 
to  base  them.  It  is  not  claimed  by  the  appellant,  however,  that  these 
findings  of  fact  are  not  warranted  by  the  evidence.  On  the  contrary, 
no  other  findings  were  possible.  It  is  the  contention  of  the  appellant, 
however,  that  the  Board  erred  in  finding  these  facts  sufficient  to  award 
compensation  to  applicant  under  the  Act  in  question,  for  the  reason 
that  they  fail  to  establish  by  any  preponderance  of  the  proof  that 
the  death  of  the  deceased  arose  out  of  his  employment.  The  Board 
arrived  at  an  erroneous,  conclusion  of  law  from  the  facts  as  found 
by  them." 

It  seems  to  be  the  contention  of  the  appellant  that  the  claim- 
ant must  establish  the  fact  that  the  injury  giving  rise  to  the 
demand,  arose  out  of  and  in  the  course  of  his  employment,  by 
n  preponderance  of  the  evidence,  as  in  a  case  at  law.  Judged 
by  this  standard  it  may  perhaps  be  said  that  claimant  failed 
to  sustain  the  burden.  The  Act,  however,  does  not  cast  this 
burden  upon  the  claimant.  It  provides,  Sec.  12,  Part  3: 

"The  findings  of  fact  made  by  said  industrial  accident  board  act- 
ing within  its  powers,  shall,  in  the  absence  of  fraud,  be  conclusive, 
but  the  supreme  court  shall  have  power  to  review  questions  of  law  in- 


LINDSTEADT  vs.  LOUIS  SANDS  SALT  &  LUMBER  CO.        377 

volved  in  any  final  decision  or  determination  of  said  industrial  acci- 
dent board." 


In  two  recent  cases  we  have  determined  that  where  there  is 
any  competent  evidence  to  support  the  finding  of  the  Board, 
this  court  will  not  undertake  to  weigh  the  evidence  or  disturb 
that  finding.  Rayner  v.  Sligh  Furniture  Co.,  180  Mich.  168; 
Bayne  v.  Riverside  Storage  &  Cartage  Co.,  181  Mich.  378. 

While  this  court  might  reach  a  different  conclusion  as  to  the 
cause  of  the  death  of  the  claimant's  decedent  than  that  reached 
by  the  board,  we  do  not  think  it  can  be  said  that  there  is  no 
evidence  in  the  record  justifying  that  conclusion. 

It  will  be  noted  that  the  award  provides  for  the  payment  of 
|6.17  per  week  for  a  period  of  300  weeks.  This  sum  is  based  up- 
on the  earnings  of  the  deceased  for  the  42%  days  preceding  his 
injury.  The  record  discloses,  however,  that  his  average  weekly 
earnings  covering  the  year  prior  to  his  death  amounted  to  but 
$10.39.  Under  Section  11,  Part  2,  this  sum  should  have  been 
made  the  basis  of  the  award.  The  finding  of  the  Industrial 
Accident  Board  on  the  question  of  liability  is  affirmed,  and 
the  case  is  remanded  to  that  Board  for  the  entry  of  an  order 
in  the  proper  amount,  which  would  be  one-half  of  f  10.39  per 
\veek  for  300  weeks. 


378  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPREME  COURT. 

ROY  CARPENTER, 

Applicant  and  Appellee, 
vs. 
DETROIT  FORGING  COMPANY, 

Defendant  and  Appellant. 

PARTIAL   Loss  OF  HAND — BASIS  OF  COMPENSATION  PARTIAL  DISABILITY 
RESULTING — NOT  PERCENTAGE. 

Applicant  while  employed  in  the  shop  of  respondent  was  injured 
by  a  steel  sliver  entering  the  third  finger  of  the  right  hand  near 
the  second  joint.  Blood-poisoning  and  inflammation  followed, 
leaving  the  hand  in  a  partially  disabled  condition,  so  that  the 
fingers  can  only  be  partially  closed.  A  settlement  agreement 
was  made  and  approved  by  the  Board  and  full  payment  made 
under  the  same,  but  it  was  shown  that  such  agreement  was 
made  before  the  extent  of  the  injury  was  fully  known.  Later, 
applicant  filed  a  petition  praying  for  reopening  of  the  case  and 
an  award  of  further  compensation,  and  on  the  hearing  of  such 
petition,  60  weeks'  additional  compensation  was  granted.  Re- 
spondent, contends  that  the  reopening  of  the  case  and  an  award 
for  the  partial  loss  of  a  hand  were  not  authorized  by  law. 

HELD:  1.  That  under  the  facts,  the  Board  acted  within  its 
authority  in  reopening  the  case  and  awarding  further  com- 
pensation. 

2.  That  the  law  does  not  authorize  an  award  on  the  basis  of 
a  percentage  of  the  specific  indemnity  for  the  loss  of  a  hand, 
and  that  the  additional  compensation  awarded  should  be  on  the 
basis  of  partial  disability  and  resulting  loss  in  earnings. 


This  case  is  here  on  certiorari  to  review  the  action  of  the 
Industrial  Accident  Board  in  setting  aside  a  compensation 
agreement  and  awarding  additional  compensation  to  the  em- 
ploye. Modified. 

Benjamin  &  Betzoldt,  of  Detroit,  Attorneys  for  the  Appli- 
cant. 


CARPENTER  vs.  DETROIT  FORGING  COMPANY.  379 

Douglas,  Eaman  d  Barbour,  of  Detroit,  Attorneys  for  the 
Defendant. 


This  case  is  here  on  certiorari  to  review  the  action  of  the 
Industrial  Accident  Board  in  setting  aside  a  compensation 
agreement  and  awarding  additional  compensation  to  the  em- 
ployee. 

On  September  26,  1913,  the  claimant  was  working  in  the 
shop  of  the  Detroit  Forging  Company.  While  taking  steel 
sockets  out  of  a  box  or  tray,  a  steel  sliver  entered  the  third 
finger  of  the  right  hand  near  the  second  joint.  It  is  admitted 
that  this  was  an  accident  arising  out  of,  and  in  the  course  of 
his  employment.  The  wound  became  infected  and  claimant 
was  totally  disabled  for  about  ten  weeks.  The  fingers,  hand 
and  entire  arm  were  swollen,  and  as  the  swelling  and  infec- 
tion subsided  they  caused  adhesion  of  muscles  and  tendons  of 
the  right  hand  which  prevented  the  entire  closing  or  bending 
)f  the  fingers.  We  shall  refer  later  to  the  testimony  relating 
to  the  labor  performed  by  claimant  after  the  accident. 

On  the  26th  of  December,  1913,  an  agreement  calling  for 
compensation  upon  the  basis  of  one-fifth  of  the  loss  of  the  four 
fingers  of  the  right  hand,  that  is,  calling  for  twenty  weeks' 
compensation,  was  signed  by  the  claimant  and  the  Globe  In- 
demnity Company  and  forwarded  to  the  Industrial  Accident 
Board,  which  refused  to  approve  the  same  unless  ten  weeks 
more  were  added  to  compensate  claimant  for  the  time  he  was 
disabled  from  performing  any  work,  on  account  of  said  injury. 
On  January  26,  1914,  another  agreement  was  signed  by  said 
claimant  and  said  indemnity  company,  by  which  said  claimant 
was  to  receive,  as  full  compensation,  $9.00  per  week  for  twenty 
weeks,  on  the  basis  of  one-fifth  of  the  loss  of  four  fingers  of 
the  right  hand,  and  in  addition  ten  more  \yeeks  at  $9.00  per 
week  for  the  time  the  claimant  was  unable  to  do  any  work  on 
account  of  said  injury. 

The  last-named  agreement  was  duly  approved  by  the  Indus- 
trial Accident  Board  on  Januarv  29,  1914,  and  the  whole  of 


3SO  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

said  thirty  weeks  of  compensation  was  promptly  paid  to 
claimant.  At  the  time  claimant  was  injured  his  average 
weekly  earnings  were  f  18.00. 

After  the  payment  of  the  30  weeks'  compensation,  claimant 
made  demand  upon  respondent  for  payment  to  him  of  addi- 
tional compensation  for  said  injury,  and  respondent  disclaimed 
liability  for  further  or  additional  compensation.  On  June  24, 
1914,  claimant  filed  a  sworn  petition  with  the  Industrial  Acci- 
dent Board,  praying  that  his  agreement  aforesaid  of  January 
26,  1914,  be  set  aside,  and  that  further  compensation  for  the 
above  injury  be  awarded  him. 

In  said  petition,  said  claimant,  among  other  things,  stated : 

"3rd.  That  by  reason  of  the  injuries  to  his  right  hand  and  right 
arm,  your  petitioner  is  unable  to  follow  his  occupation  of  that  of 
polisher  and  is  unable  to  earn  said  wages  of  $18.00  per  week,  but,  on 
the  contrary,  at  the  present  time  and  for  some  time  past,  has  been 
unable  to  earn  any  wages  whatsoever.  That  your  petitioner  is  unable 
to  make  use  of  said  right  hand  and  arm,  and  he  avers  that  the  in- 
juries to  said  right  hand  and  right  arm  will  be  permanent,  and  that 
he  will  be  deprived  of  the  use  of  said  right  hand  and  arm,  for  and 
during  the  remainder  of  his  natural  life. 

"4th.  Your  petitioner  further  avers  that  on  or  about  the  26th  day 
of  January,  1914,  at  the  request  and  relying  upon  the  representations 
of  the  Globe  Indemnity  Company,  he  then  and  there  signed  a  certain 
alleged  agreement  in  regard  to  compensation,  reference  to  which 
agreement  is  hereby  had,  and  which  said  agreement  is  now  on  file  in 
this  cause. 

"5th.  Your  petitioner  further  avers  that  before  signing  said  agree- 
ment, he  then  and  there  asked  the  representative  of  said  Globe  In- 
surance Company  that  if  his  said  injuries  as  aforesaid  continued  for 
a  longer  period  than  anticipated,  or  became  permanent,  if  petitioner 
would  be  entitled  to  additional  compensation;  that  said  Globe  In- 
demnity Company,  through  its  said  representative,  then  and  there 
informed  your  petitioner  that  if  his  injuries  were  more  serious  than  at 
first  anticipated,  your  petitioner  would  receive  compensation  until  he 
would  have  the  use  of  said  right  hand  and  arm,  as  provided  for  under 
the  so-called  compensation  law;  that  said  representative  further  stated 
that  said  agreement  so  to  be  executed  was  merely  preliminary  and 
not  binding  upon  your  petitioner  if  said  injuries  continued  -  for  a 
longer  time  than  contemplated  by  the  agreement  and  became  per- 
manent; that  said  representative  further  stated  that  in  such  event, 
the  Industrial  Accident  Board  would  re-open  and  set  aside  said  agree- 


>  CARPENTER  vs.  DETROIT  FORGING  COMPANY.  381 

ment  and  give  your  petitioner  such  additional  compensation  as  would 
properly  compensate  your  petitioner  for  his  injuries  so  sustained; 
that  your  petitioner,  relying  upon  such  various  representations  and 
believing  them  to  be  true,  then  and  there  signed  said  alleged  agree- 
ment in  regard  to  compensation." 

On  September  15,  1914,  testimony  was  taken  by  deposition 
in  support  of,  and  in  opposition  to  said  petition.  Said  claim- 
ant and  his  wife  (the  latter  testifying  that  she  was  present 
when  said  agreement  was  made)  gave  testimony  tending  to 
support  the  claim  set  forth  in  the  petition  relating  to  the 
statements  made  by  the  representative  of  said  indemnity  com- 
pany at  the  time  said  agreement  was  signed. 

E.  T.  Pocklington,  the  adjuster  who  made  the  alleged  set- 
tlement with  claimant,  testified  in  part  as  follows: 

Q.  "State  whether  or  not  you  said  anything  to  him  about  his  hand. 
I  think  he  has  admitted  that  you  did — being  permanently  injured 
at  that  time? 

A.  "Yes,  that  was  the  basis  upon  which  we  made  the  settlement. 
First,  I  started  him  out  on  the  loss  of  time  basis,  paying  him  $9.00 
a  week,  just  simply  because  of  the  fact  that  he  was  disabled,  and 
not  acknowledging  any  permanent  disability.  The  reason  I  did  that 
was  because  at  first  Dr.  Blain  told  me  he  thought  there  might  not 
be  any  permanent  disability,  and  that  is  customary  anyway  with  all 
where  we  make  payments  under  the  compensation  law,  and  I  paid  him 
along  for  probably  eight  weeks,  when  the  doctor  told  me  that  there 
was  a  permanent  injury,  there  would  be  a  permanent  stiffening. 

Q.     "Of  what,  the  fingers? 

A.  "Of  the  fingers,  partial  stiffening,  and  this  reply  of  the  doctor 
was  made  to  my  inquiry  because  I  had  decided  myself,  seeing  the 
hand  week  after  week,  it  was  "permanent,  so  I  took  it  up  with  the 
doctor  and  he  said  it  would  be  permanent,  and  over  the  telephone 
he  told  me  a  fifth  would  be  a  fair  percentage  upon  which  to  base  the 
loss  of  function;  and  the  next  time  Mr.  Carpenter  came  in  I  told  him 
that  there  wasn't  any  question  at  all  but  what  his  injury  was  per- 
manent. I  said,  it  may  get  a  little  better;  there  may  be  some  im- 
provement, but  nevertheless  it  will  never  be  like  it  was  before  and 
the  only  thing  we  can  do  is  to  adjust  the  loss  on  the  lasis  of  the 
present  condition.  'Now,'  I  says  to  Mr.  Carpenter,  'if  you  had  lost  all 
of  those  fingers  you  would  be  entitled  to  compensation  for  one  hun- 
dred weeks,'  and  I  explained  that  as  he  has  already  attempted  to  ex- 
plain it,  giving  him  the  number  of  weeks  for  each  finger,  'but  now,' 
I  said,  'you  haven't  lost  all,  there  is  considerable  amount  of  use  left,' 


382  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

I  says.  'Is  it  half  as  bad  as  though  you  had  lost  all?'  and  he  ad- 
mitted that  it  wasn't;  was  quite  vehement  in  his  denial;  and  I  said, 
'is  it  a  quarter  as  bad?'  No,  it  wasn't  a  quarter  as  bad.  'Well,'  I 
said,  'Isn't  it  about,  or  wouldn't  it  be  about  one-tenth  part  as  bad?' 
And  Mr.  Carpenter  allowed  that  it  would  be  about  a  tenth,  and  then 
I  said:  'If  I  allow  you  twice  as  much,  or  a  fifth,  you  will  be  satis- 
fied,' and  he  was  perfectly  satisfied;  that  is  the  way  that  Mr.  Car- 
penter and  I  talked  the  matter  over.  It  was  strictly  on  the  basis  of 
a  permanent  disability,  and  based  on  the  present  condition  of  the 
hand,  and  then  at  that  time,  the  condition  at  that  time,  and  so  far  as 
his  future  trouble  is  concerned,  I  told  him.  He  asked  me:  'If  the 
hand  gets  stiff  so  I  cannot  do  anything  with  it,  what  can  I  do  then?' 
And  I  said:  'If  you  should  lose  the  hand,  the  entire  usefulness  of  the 
hand,  you  will  get  paid  for  the  hand.  The  Board  will  see  that  you 
get  paid.'  I  was  very  particular  to  impress  upon  his  mind  at  the 
time  of  signing  the  agreement,  that  was  an  agreement  between  us. 
I  am  very  particular  to  see  that  everyone  who  signs  an  agreement 
or  settlement  understand  what  they  are  signing." 

From  the  evidence  produced  before  the  Board,  it  found  the 
facts  to  be  in  substance  as  follows: 

(a)  That  on  December  26,  1913,  when  the  claimant  and 
Mr.  Pocklington  came  to  an  understanding  or  agreement,  that 
the  amount  of  said  claimant's  injuries  would  be  one-fifth  of 
the  loss  of  the  four  fingers  of  said  right  hand,  that  said  right 
hand  was  then  in  a  splint  and  that  it  was  impossible  for  either 
party,  at  that  time,  to  fully  know  whether  there  would  be  any 
permanent  stiffness  of  the  fingers  or  hand,  or  the  extent  of 
claimant's  injuries,  but  both  parties  expected  said   injuries 
would  be  permanent  to  some  extent,  but  to  what  extent  was 
not  then  known. 

(b)  That  on  January  26,  1914,  when  the  last  agreement  be- 
tween the  parties  was  signed,  it  was  then  expected  by  Mr. 
Pocklington,  adjuster,  that  the  injuries  sustained  by  claimant, 
were  permanent,  and  he  so  informed  the  said  claimant,  and 
that  said  settlement  agreement  was  signed  by  claimant  upon 
the  understanding  and  basis  that  the  injuries  he  had  received 
did  not,  and  would  not  amount  to  more  than  one-fifth  the  1( 
of  the  four  fingers  of  the  right  hand,  and  if  it  afterwards  de- 
veloped that  the  injuries  were  more  serious,    the    claimant 


CARPENTER  vs.  DETROIT  FORGING  COMPANY.  383 

would  have  the  right  to  petition  the  Board  for  further  com- 
pensation. 

(c)  The  Board  found,  as  a  matter  of  fact,  that  the  injury 
sustained  by  claimant  was  permanent,  and  affected  the  use  of 
the  entire. hand;  that  the  condition  of  claimant's  hand  had 
improved  since  January  26,  1914;  that,  however,  claimant  had 
lost  60%  of  the  normal  use  of  said  right  hand. 

(d)  That  the  evidence  disclosed  that  on  account  of  this  in- 
jury the  average  weekly  earnings  of  the  claimant,  from  the 
time  he  was  able  to  return    to    work,    had   been   greatly  de- 
creased, and  that  he  was,  and  would  be,  unable  in  the  future 
to  do  metal  grinding  and  polishing,   (the  work  which  he  was 
engaged  in  when  injured,)  or  other  skilled  work  requiring  the 
full  use  of  both  hands,  and  that  as  to  common  labor,  he  would 
be  partially  incapacitated,  all  on  account  of  his  injuries,  and 
the  permanent  nature  thereof. 

(e)  .   That  the  then  condition  of  claimant's  hand  and  arm, 
and  his  resulting  disability,  were  due  to  the  injury  received  by 
him  September  26,  1913. 

Thereafter  the  said  Board  entered  an  order,  in  writing, 
granting  the  prayer  of  claimant,  and  adjudging  that  he  was 
entitled  to  receive  and  recover  from  the  said  respondent,  in  ad- 
dition to  all  sums  theretofore  received  by  him,  compensation 
for  sixty  weeks  at  the  rate  of  f 9.00  per  week ;  that  the  portion 
of  such  compensation  as  that  had  accrued  from  the  time  of 
the  stopping  of  payments  to  .said  claimant,  should  be  due  and 
payable  on  the  date  of  said  order,  the  remainder  thereof  to 
be  paid  weekly  in  weekly  payments,  in  accordance  with  the 
provisions  of  the  Workmen's  Compensation  Law, — the  amount 
thus  awarded  to  be  in  full  of  all  claims  of  said  applicant 
against  said  respondents. 

Thereafter  the  appellant  filed  a  motion  for  a  rehearing,  con- 
tending that  the  award  and  order  of  the  Board  granted  com- 
pensation on  the  basis  of  a  certain  percentage  of  the  loss  of 
the  hand  or  arm,  which  loss  of  use  was  less  than  total  loss  of 
use  of  same,  and  that  this  basis  was  erroneous,  which  motion 
was  denied. 


334  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

The  said  Board  further  stated  in  its  return  to  the  writ,  that 
there  was  no  claim  made  upon  the  hearing  of  the  matter  that 
Mr.  Pocklington,  adjuster  for  the  Globe  Indemnity  Company, 
intended  to  act  fraudulently. 

As  a  finding  of  law,  said  Board  found  that  under  the  facts 
in  the  case  the  applicant  was,  as  matter  of  law,  entitled  to 
sixty  weeks'  additional  compensation. 

The  assignments  of  error  are  as  follows: 

(1)  In  holding  that  the  agreement  with  regard  to  com- 
pensation was  not  final  and  binding  upon  claimant. 

(2)  In  basing  the  award  on  a  partial  loss  of  four  fingers 
of  the  right  hand,  and  not  on  one-half  the  difference  between 
claimant's  average  weekly  wages  before  the  injury,  and  the 
average  weekly  wages  which  he  was,  -and  is  able  to  earn  after 
the  injury. 

(3)  In  basing  the  award  on  a  partial  or  percentage  loss  of 
a  hand  instead  of  on  the  extent  of  disability,  viz.:  one-half 
the  difference  between  claimant's  average  weekly  wages  before 
the  injury,  and  the  average  weekly  wages  which  he  was,  and 
is  able  to  earn  after  the  injury. 

(4)  In  basing  the  award  on  a  partial  or  percentage  loss 
of  the  right  arm,  and  not  on  one-half  the  difference  between 
claimant's  average  weekly  wages  before  the  injury,  and  the 
average  weekly  wages  which  he  was,  and  is  able  to  earn  after 
the  injury. 

(5)  In   determining  and   ordering  respondent  to   pay   to 
claimant  the  sum  of  $540,  in  addition  to  the  amount  already* 
paid  as  further  compensation  for  the  accident  and  injury  to 
claimant. 

The  followng  request  was  made  by  counsel  for  respondent 
and  appellant  at  the  hearing  to  settle  the  return  to  the  writ 
herein : 

1.  That  the  return  state,  and  show  upon  what  clause  and 
provision  of  Act  No.  10  Public  Acts  of  1912  the  award  arrived 
at  by  the  Board,  in  this  case  was  determined  and  base4- 

2.  That  the  basis  of  the  award  be  shown  in  the  return  to 
the  writ. 


CARPENTER  vs.  DETROIT  FORGING  COMPANY.  385 

Which  request  the  Board  refused,  for  the  reason  that  the 
indiug  of  law  made  by  it,  and  set  forth  in  the  return,  is  suffi- 
iently  definite. 

Counsel  for  appellant  state  that  there  are  but  two  general 
questions  presented  in  the  case: 

1.  Did  the  Board  err  in  setting  aside  the  settlement  agree- 
ment of  January  26,  1914? 

2.  Was  the  award  based  on  a  percentage  loss  of  the  right 
iand? 

(1)  Upon  the  first  point  counsel  rely  principally  upon 
section  5  of  Part  2  of  the  Act.  They  concede  that  such  an 
agreement  as  the  statute  contemplates,  may  be  set  aside  for 
fraud,  mistake  or  undue  influence.  In  our  opinion  the  statute 
contemplates  an  agreement  and  settlement  made  without  con- 
tingency or  condition;  and  not  one  based  upon  a  possible  or 
probable  event  that  may  render  it  inoperative.  ,An  agree- 
ment and  settlement  based  on  the  strength  of  such  a  condition 
or  contingency  is  not  such  as  the  statute  contemplates.  Here, 
according  to  the  testimony  of  the  adjuster  Pocklington,  the 
settlement  was  based  upon  the  understanding  that  if  claim- 
ant's hand  got  worse  so  that  he  should  lose  the  usefulness  of 
the  hand,  the  Board  would  see  that  he  got  paid  for  it. 

The  testimony  of  the  claimant  and  his  wife  went  much  fur- 
ther, and  was  to  the  effect  that  if  the  hand  and  fingers  did  not 
get  better,  he  could  put  the  matter  before  the  Board,  and  that 
the  agreement  would  not  be  binding,  or  final. 

It  does  not  meet  the  question  to  say  that  Mr.  Pocklington 
did  not  intend  to  act  fraudulently.  The  material  question  is, 
what  was  the  effect  of  what  he  said? 

Ordinarily  one  cannot  successfully  ask  for  affirmative  relief 
on  the  bare  ground  that  he  was  either  ignorant  of  the  law,  or 
mistaken  as  to  what  it  prescribed.  But  it  is  now  well  settled 
that  this  rule  is  not  invariably  to  be  applied.  In  many  cases 
where  injustice  would  be  done  by  its  enforcement,  this  has 
been  avoided  by  declaring  that  a  mistake  as  to  the  existence 
of  certain  particular  rights,  though  caused  by  an  erroneous 
49 


386  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

idea  as  to  the  legal  effect  of  an  instrument,  or  as  to  the  duties 
or  obligations  created  by  an  agreement,  was  really  a  mistake 
of  fact,  and  not  strictly  one  of  law,  and  so  did  not  constitute 
an  insuperable  bar  to  relief. 

Keggio  v.  Warren,  207  Mass.,  525,  as  reported  in  Vol. 
20  A.  &  E.  Ann.  Cases,  1244,  and  cases  cited  in 
note. 

The  rule  is  that  a  release  may  be  rescinded  for  a  mutual 
mistake  of  law.  Kirchner  v.  New  Home  Sewing  Mach.  Co., 
135  N.  Y.,  189. 

Whether  placed  upon  the  ground  of  constructive  fraud,  or 
mistake  of  fact  as  well  as  of  law,  the  law  forbids  that  a  party, 
who,  with  full  knowledge  of  the  ignorance  of  the  other  con- 
tracting party,  has  not  only  encouraged  that  ignorance,  but 
has  knowingly  deceived  and  led  that  other  into  a  mistaken 
conception  of  his  legal  rights,  should  shield  himself  behind  the 
doctrine  that  a  mere  mistake  of  law  affords  no  ground  for  re- 
lief. 

We  think  that  placing  its  action  upon  either  ground,  the 
Board  did  not  err  in  acting,  notwithstanding  the  so-called  set- 
tlement agreement. 

(2)  The  remaining  assignments  of  error  may  be  consid- 
ered together. 

It  should  be  stated  that  the  order  of  the  Board  was  made 
before  the  opinion  of  this  court  in  Hirschkorn  v.  Fiege  Desk 
Co.,  150  N.  W.,  851,  was  rendered.  That  case  has  been  fol- 
lowed by  Cline  v.  Studebaker  Corporation,  135  N.  W.,  519. 

Those  cases  hold  that  as  the  Act  (Section  10  Part  2)  under 
the  schedule  of  specific  indemnity  provides  compensation  only 
for  the  loss  of  an  eye,  an  award  cannot  be  arrived  at  upon  a 
basis  of  a  partial  loss  of  the  same. 

\\V  think  that  this  principle,  and  the  reasoning  of  the  cases 
apply  as  well  in  the  case  of  an  injury  to  a  hand  as  to  an  eye. 
Although  there  is  no  special  finding  upon  the  point,  it  is  evi- 
dent from  the  language  used  by  the  Board  that  it  made  its 


CARPENTER  vs.  DETROIT  FORGING  COMPANY.  3S7 

allowance  under  the  schedule  of  fixed  liabilities  contained  in 
the  above  cited  section,  instead  of  under  the  first  clause  of 
that  section,  which  is  as  follows: 

"While  the  incapacity  for  work  resulting  from  the  injury  is  par- 
tial, the  employer  shall  pay,  or  cause  to  be  paid  as  hereinafter  pro- 
vided, to  the  injured  employe  a  weekly  compensation  equal  to  one- 
half  the  difference  between  his  average  weekly  wages  before  the  injury, 
and  the  average  weekly  wages  which  he  is  able  to  earn  thereafter, 
but  not  more  than  ten  dollars  a  week;  and  in  no  case  shall  the  period 
covered  by  such  compensation  be  greater  than  three  hundred  weeks 
from  the  date  of  injury." 

It  was  our  first  impression  that  the  amount  awarded  was 
no  greater  than  could  have  been  given,  by  the  evidence,  under 
the  clause  above  quoted,  and  that  appellant  had  not  been  in- 
jured in  the  amount  of  the  award.  A  more  careful  examina- 
tion of  the  evidence  leads  us  to  doubt  the  correctness  of  that 
impression. 

Under  the  practice  as  stated  in  Andrejwski  v.  Wolverine 
Coal  Co.,  182  Mich.  298,  and  Finn  v.  Detroit,  Mt.  C.  &  M.  City 
Ky.,  155  N.  W.,  721 ;  22  Det.  L.  N.,  1204,  the  order  of  the  said 
Industrial  Accident  Board  is  therefore  reversed,  and  the  case 
hereby  remanded  for  such  further  hearing  therein  before  said 
Board,  as  the  parties  may  desire. 


388  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


ARTHUR  L.  BE  VANS, 

Applicant, 
vs. 
STEWART  LAUNDRY  COMPANY, 

Respondent. 

BABNYAED  INFECTION — EVIDENCE — SUFFICIENCY  OF. 

Applicant  claimed  that  the  disease  from  which  he  suffered  was  con- 
tracted by  infection  caused  by  contact  with  and  caring  for  sick 
horses  of  his  employer  and  that  it  was  an  injury  by  accident 
within  the  meaning  of  the  law. 

HELD:     Evidence  insufficient  to  establish  the  claim. 


Opinion  by  the  Board: 

Applicant  claims  compensation  for  disability  resulting 
from  what  is  termed  barnyard  infection  which  he  claims  was 
caused  by  contact  with  and  caring  for  sick  horses  of  his  em- 
ployer, the  respondent  in  this  case.  It  is  claimed  that  the  in- 
fection is  a  germ  disease  and  that  its  communication  to  ap- 
plicant from  the  horse  constituted  a  personal  injury  by  acci- 
dent within  the  meaning  of  the  Law.  We  have  given  very 
careful  consideration  to  the  case,  and  while  convinced  that  a 
disease  contracted  by  infection  from  the  lodgment  of  germs  or 
bacilli  in  the  system  constitutes  an  industrial  accident,  we  are 
not  convinced  that  the  proofs  will  sustain  the  claim  here  made. 
The  evidence  shows  that  the  first  horse  was  taken  sick  on  April 
7th  and  two  other  horses  became  sick  within  the  next  30  days. 
I>evans  took  care  of  the  horses,  administered  medicine  with  a 
syringe  and  later,  in  the  month  of  June,  experienced  a  swell- 
ing in  the  throat.  On  August  3rd  he  consulted  Dr.  Colver  who 
treated  him,  operated  on  the  throat  and  later,  December  3rd, 
took  him  to  Ann  Arbor  for  examination  by  Dr.  Oanfield.-  H< 
was  operated  on  by  Dr.  Canfield  at  Ann  Arbor  on  December 
Dth,  and  returned  home  January  Oth.  Bevans  says  in  his  tes- 


BEVANS  vs.  STEWART  LAUNDRY  CO. 


389 


timony  that  his  disease  was  just  the  same  as  the  horses  had, 
so  far  as  he  could  observe.  The  medical  testimony  is  given  by 
Dr.  Mix,  the  veterinary  who  treated  the  horses,  and  Dr.  Col- 
ver.  Dr.  Mix  had  no  knowledge  of  the  disease  Bevans  suffered 
from  or  of  its  nature.  Dr.  Canfield  was  not  called  as  a  wit- 
ness. Dr.  Colver  testified  that  he  did  not  know  what  Mr.  Bev- 
ans' disease  was  or  from  what  germ  he  was  suffering.  His 
testimony  when  fully  examined  does  not  make  a  reasonable 
showing  in  support  of  the  claim  that  Bevans  contracted  the 
disease  from  the  horse  by  accidental  communication  of  the 
germ  while  caring  for  the  horse  or  administering  medicine.  In 
the  absence  of  evidence  tending  to  prove  that  Bevans  con- 
tracted this  disease  from  the  horse  by  showing  the  substantial 
identity  of  the  germ  and  disease,  there  is  no  substantial  basis 
for  awarding  compensation.  Dr.  Colver  was  not  present  at 
the  operation  performed  by  Dr.  Canfield.  The  only  evidence 
as  to  what  Dr.  Canfield  found  is  the  hearsay  evidence  of  Dr. 
Colver  as  to  what  was  said  by  Dr.  Canfield. 

We  are  convinced  that  the  proofs  do  not  fairly  establish  the 
claim  and  that  no  compensation  can  be  awarded. 


390  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


JOSEPH  KALUCKI, 

Applicant, 
vs. 
AMERICAN  CAR  &  FOUNDRY  COMPANY, 

Respondent. 

Loss  OF  EYE  RESULTING  SEVERAL  MONTHS  AFTER  ACCIDENT — LIMITATIONS. 
Applicant  received  an  injury  to  his  left  eye  which  was  not  con- 
sidered serious  and  did  not  prevent  him  from  doing  his  work  and 
earning  the  same  wage  for  several  months  following  the  accident. 
About  8  months  from  the  date  of  the  accident  the  eye  was  ex- 
amined by  an  expert  and  the  sight  was  found  to  be  entirely  gone. 
Respondent  claims  that  compensation  is  barred  by  the  failure  to 
make  claim  within  6  months  after  the  happening  of  the  accident. 

HELD:  1.  That  while  the  accident  set  in  motion  agencies  which 
ultimately  destroyed  the  sight  of  the  eye,  no  right  to  compensation 
accrued  and  no  compensable  injury  existed  until  the  point  of  time 
was  reached  where  the  eye  was  a  total  loss. 

2.  That  the  injury  complained  of  is  the  loss  of  the  eye  which 
did  not  result  until  several  months  after  the  accident,  and  that 
the  right  to  compensation  is  not  barred  by  failure  to  make  claim. 


Opinion  by  the  Board: 

Applicant's  left  eye  was  injured  on  July  29,  1914,  while  he 
was  in  the  employ  of  respondent  and  engaged  in  his  usual 
work,  the  injury  being  caused  by  bits  of  steel  entering  his  eye. 
The  accident  was  reported  to  the  company's  doctor,  and  appli- 
cant was  furnished  medical  service  for  a  few  days,  after  which 
he  returned  to  work,  it  being  thought  that  the  eye  was  not 
seriously  injured.  He  was  able  to  do  his  usual  work  and  re- 
ceive the  same  wages,  although  the  eye  caused  him  some  trou- 
ble and  inconvenience.  He  continued  in  the  employ  of  the 
company  until  the  work  on  which  he  was  employed  was  fin- 
ished. The  eye  continued  to  cause  him  more  or  less  trouble, 
and  being  treated  and  cared  for  with  the  expectation  that  the 


KALUCKI  vs.  AMERICAN  CAR  &  FOUNDRY  CO.  391 


I  trouble  would  be  overcome.  On  April  7,  1915,  applicant  had 
the  eye  examined  by  Dr.  Don  M.  Campbell,  and  it.  was  then 
found  that  the  vision  of  the  eye  was  gone  and  the  eye  useless. 
Claim  was  made  for  compensation  for  the  loss  of  an  eye  and 
the  case  proceeded  to  arbitration.  The  principal  contention 
of  respondent  is  the  want  of  notice  of  injury  and  that  no 
claim  for  compensation  was  made  within  six  months  after  the 
accident.  The  formal  claim  for  compensation  was  filed  and 
served  on  the  employer  on  June  10,  1915. 

It  appears  that  the  employer  had  knowledge  of  the  acci- 
dent and  caused  the  injury  to  the  eye  to  be  treated  and  cared 
for  by  its  physicians.  The  serious  question  in  the  case  arises 
with  reference  to  the  claim  for  compensation.  The  furnishing 
of  medical  service  and  treatment  by  the  employer  would  seem 
to  constitute  a  waiver  of  its  defense  based  on  failure  to  make 
such  claim.  The  defense  is  a  tehcnical  one  and  is  interposed 
in  this  case  to  defeat  applicant's  claim  for  a  very  serious  in- 
jury which  is  otherwise  concededly  meritorious. 

The  claim  put  forward  in  this  case,  that  applicant  should 
have  made  formal  claim  for  compensation  for  the  injury  to 
the  eye  within  six  months  from  the  date  of  the  accident,  raises 
some  important  considerations.  It  has  been  held  by  the  Su- 
preme Court  that  no  compensation  is  recoverable  for  injury  to 
an  eye  where  the  sight  is  not  wholly  lost,  and  where  the  in- 
jured man  is  aWe  to  perform  his  work  and  earn  the  same 
wages.  Under  these  rulings,  the  applicant  had  no  claim  that 
could  be  asserted  under  the  Compensation  Law  during  the 
first  six  months  following  the  accident.  It  seems  that  it 
could  not  reasonably  be  held  that  his  failure  to  go  through  the 
formality  of  making  a  claim  during  this  period,  forever  bars 
his  right  to  recovery  for  the  injury.  Under  the  rulings  above 
referred  to,  the  applicant  had  no  enforcible  claim  under  the 
Compensation  Law  until  the  sight  of  the  eye  was  gone.  Hirsch- 
korn  vs.  Feige  Desk  Company,  184  Mich.  239.  Not  until  the 
examination  made  by  Dr.  Campbell  on  April  7,  1915,  was  he 
aware  that  the  eye  was  lost.  Up  to  that  time  he  could  not 
have  known  that  he  had  a  claim  for  compensation  under  the 


392  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Law.  It  is  true  that  he  knew  a  portion  of  the  sight  had  been 
lost,  but  .this  did  not  entitle  him  to  compensation,  as  our 
Law  does  not  permit  recovery  for  the  loss  of  a  percentage  of 
the  eye  which  is  less  than  total.  It  seems  therefore  that  a 
distinction  must  be  made  in  cases  of  this  kind  between  the 
accident  and  the  resulting  injury.  It  is  apparent  that  the  ac- 
cident set  in  motion  agencies  which  ultimately  destroyed  the 
sight  of  the  eye,  but  the  loss  of  the  eye  which  would  be  the 
only  compensable  injury  in  the  case  did  not  occur  until  sev- 
eral months  after  the  accident.  A  similar  question  has  been 
recently  passed  upon  by  the  Supreme  Court  of  Nebraska  in 
the  case  of  Johanson  v.  Union  Stockyards  Co.,  156  N.  W.  Rep. 
511.  The  injury  was  the  loss  of  an  eye  which  occurred  several 
months  after  the  accident,  the  principal  defense  being  the 
failure  to  file  claim  for  injury  within  the  six  months  period. 
The  Court  say: 

"It  is  conceded  that  the  accident  happened  more  than  six  months 
before  this  claim  was  made  (the  date  of  the  accident  being  December 
18,  1914).  The  trial  court  found  'that  said  accident  resulted  in  a 
total  disability  to  plaintiff  on  December  25,  1915.'  *  *  The  plaintiff 
went  to  his  home  the  night  after  the  accident,  and  he  testified  that, 
with  the  help  of  his  niece,  he  washed  his  eye  with  warm  water,  and 
they  appear  to  have  so  continued  treating  it,  without  realizing  what 
might  result  from  the  accident,  for  several  days,  until  the  25th  day 
of  December,  when  he  was  induced  to  consult  a  physician,  who  ad- 
vised him  to  go  to  a  hospital  and  consult  an  expert.  This  he  accord- 
ingly did,  and  was  informed  that  his  eye  was  in  a  serious  condition 
and  might  result  very  unfavorably.  During  this  time,  apparently,  the 
injury  resulting  from  the  accident  gradually  became  developed,  and  it 
cannot  be  said  that  the  injury  resulted  from  the  accident,  within  the 
meaning  of  the  statute,  before  the  time  it  was  discovered  that  it  might 
become  permanent,  which  was  some  time  after  the  25th  of  December. 
This  evidence  clearly  justifies  the  finding  of  the  trial  court  under  this 
statute,  that  the  accident  resulted  in  a  total  disability  to  plaintiff  on 
December  25,  1915.  It  also  appears  from  the  evidence  that  the  plain- 
tiff's foreman  knew  of  the  accident  at  the  time,  or  very  soon  after  it 
occurred.  He  so  testifies  himself.  He  could  not,  of  course,  then  have 
known  of  the  injury  as  it  finally  developed." 

While  the  distinction  between  "accident"  and  "injury"  in 
the  case  cited  is  based  to  some  extent  upon  the  definition  of 


INTER-INSURANCE   EXCHANGES. 


393 


these  terms  given  in  the  Nebraska  Act,  substantially  the  same 
distinction  exists  independent  of  statute,  as  pointed  out  by  us 
in  the  opinion  filed  in  the  Harry  Hart  case.  It  seems  that 
this  is  the  only  reasonable  interpretation  of  the  law  in  case  of 
injury  to  an  eye  which  does  not  disable  the  workman  from 
continuing  his  employment  and  earning  his  former  wages,  but 
which  ultimately  results  in  the  loss  of  the  eye.  No  valid  right 
to  compensation  exists  for  which  claim  could  be  made  until 
the  point  of  time  is  reached  where  the  eye  is  a  total  loss.  It 
would  be  most  unreasonable  to  require  that  the  injured  work- 
man file  claim  for  compensation  before  a  legal  right  to  such 
compensation  accrued  to  him.  On  the  other  hand,  it  would  be 
a  harsh  rule  of  interpretation  to  cause  the  forfeiture  of  a 
meritorious  claim  for  such  a  serious  injury,  on  the  ground 
that  the  injured  man  did  not  claim  compensation  for  the  loss 
of  an  eve  before  he  was  aware  that  it  was  lost. 


INTEE-INSURANOE  EXCHANGES. 

The  Inter-Insurance  Exchanges  licensed  to  do  business  in  Michigan 
under  Act  278,  Public  Acts  of  1913,  are  so  organized  that  the  power 
to  assess  their  membership  is  limited  and  the  liability  of  the  mem- 
bers several.  It  is  a  fundamental  requirement  of  workmen's  com- 
pensation insurance  that  the  liability  of  the  insurer  be  limited  only 
by  the  amount  necessary  to  pay  all  lawful  claims  of  the  workmen 
covered,  and  their  dependents.  Therefore,  such  Exchanges  must 
provide  for  emergency  losses  and  any  deficiencies  by  re-insurance 
in  a  company  or  companies  of  such  responsibility  as  shall  meet 
the  approval  of  the  Industrial  Accident  Board. 

Under  the  provisions  of  Act  No.  278  of  Public  Acts  of  1913, 
n  number  of  Inter-Insurance  Exchanges  have  been  licensed  to 
do  business  in  Michigan.  These  Exchanges  all  operate  on  sub- 


394  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

stantially  the  same  system,  viz.,  through  an  attorney  in  fact 
to  whom  each  member  of  the  Exchange  gives  a  power  of  attor- 
ney. This  power  of  attorney  authorizes  the  person  or  corpo- 
ration to  exchange  contracts  of  indemnity  with  and  for  the 
benefit  of  other  members  of  the  Exchange.  The  attorney  in 
fact  controls  the  operation  of  the  Exchange,  carries  on  the 
business,  adjusts  the  losses  and  collects  the  funds  from  the 
members  for  such  losses  and  the  expenses  of  the  operation. 

The  Exchanges  admitted  by  the  insurance  department  of 
the  state  to  do  business  in  Michigan,  have,  through  their  re- 
spective attorneys  in  fact,  adopted  and  attached  to  their 
policies  or  certificates  the  Eider  prescribed  by  the  Industrial 
Accident  Board,  and  used  by  all  of  the  liability  companies  in 
Michigan  which  are  carrying  compensation  insurance.  If  the 
action  of  such  attorneys  in  fact  in  so  adopting  the  Eider  pre- 
scribed by  the  Board  is  within  their  powers  and  their  sub- 
scribers are  thereby  made  liable  for  all  losses  according  with 
the  provisions  of  such  Eider,  then  they  would  be  entitled  to 
the  approval  of  the  Board  in  carrying  the  risk  of  employers  of 
labor  in  this  state.  But  an  examination  of  the  powers  of  at- 
torney of  the  different  Exchanges  raises  a  very  serious  ques- 
tion as  to  the  authority  of  the  several  attorneys  in  fact  to  so 
bind  their  subscribers. 

Immediately  after  the  compensation  law  went  into  effect  in 
1912,  the  Board  required  all  liability  companies  and  mutual 
companies  carrying  compensation  insurance  to  remove  from 
their  policies  the  clause  placing  a  limitation  upon  the  amount 
of  the  company's  liability  resulting  from  any  one  accident. 
This  ruling  at  first  met  with  serious  objection  from  the  in- 
surers, but  all  have  complied  with  it;  and  it  is  now  estab- 
lished as  a  part  of  the  system  in  Michigan  that  the  liability 
of  the  insurer  growing  out  of  any  one  accident  is  limited  only 
by  the  amount  necessary  to  pay  compensation  to  all  workmen 
injured  and  the  dependents  of  all  who  are  killed  thereby.  Hav- 
ing held  from  the  beginning  that  any  company  assuming  to 
carry  the  risk  for  an  employer  of  labor  must  assume  and  carry 
all  risk,  the  Board  could  not  now  properly  approve  contracts 


INTER-INSURANCE  EXCHANGES.  395 

of  Indemnity  Exchanges  unless  they  fully  meet  the  require- 
ments that  other  companies  and  organizations  have  been  re- 
quired to  meet.  The  fundamental  purposes  of  the  law  in  pro- 
viding for  insurance  is  to  make  certain  the  payment  to  each 
injured  workman  of  all  of  the  compensation  which  he  is  en- 
titled to  receive  under  the  law.  The  necessity  for  the  action 
taken  by  the  Board  in  requiring  that  the  obligations  of  the 
insurer  be  unlimited  is  demonstrated  by  the  explosion  in  the 
plant  of  the  Mexican  Crude  Rubber  Company  of  Detroit,  where 
nearly  a  dozen  workmen  were  killed  and  a  number  injured. 

While  the  powers  of  attorney  of  the  Exchanges  referred  to 
differ  in  some  respects,  they  are  alike  in  their  essential  feat- 
ures. They  provide  that  the  attorney  shall  have  no  power  to 
bind  the  subscribers  jointly,  and  that  he  can  only  bind  such 
subscribers  severally,  and  that  no  subscriber  shall  be  liable  to 
pay  during  any  one  year  more  than  double  the  (advance)  pre- 
mium for  that  year.  That  the  power  of  the  attorney  in  fact 
is  entirely  limited,  and  further  that  the  power  of  attorney  may 
be  terminated  by  the  subscribers  at  will.  Sections  5  of  Act 
No.  278  of  Public  Acts  of  1913,  provides  for  the  filing  of  a 
statement  under  oath  in  the  insurance  department  of  the  state 
by  the  attorney  in  fact  of  each  Exchange  admitted  to  do  bus- 
iness in  the  state,  setting  forth  among  other  things  the  maxi- 
mum liability  for  any  one  accident  occurring  in  the  business 
of  any  of  its  subscribers.  Such  statements  have  been  filed 
with  the  insurance  commissioner,  some  of  them  limiting  the 
liability  to  f  10,000  and  some  to  |20,000,  which  latter  sum  is 
the  highest  amount  specified  in  any  of  the  certificates.  In  view 
of  the  provisions  of  the  several  powers  of  attorney  and  such 
certificates,  the  action  of  the  attorneys  in  fact,  in  assuming 
to  adopt  the  Eider  prescribed  by  the  Board,  is  clearly  beyond 
and  in  conflict  with  the  powers  of  such  attorneys.  Their  au- 
thority is  derived  entirely  from  the  powers  of  attorney,  which 
constitute  the  sole  grant  of  power  from  their  subscribers.  We 
are  therefore  of  the  opinion  that  the  action  of  the  attorneys 
in  fact  of  such  Exchanges  in  attaching  to  their  policies  the 
Rider  required  by  the  Industrial  Accident  Board  is  in  each 


396  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

case  ultra  vires  and  does  not  bind  the  subscribers  beyond  what 
is  covered  in  the  express  grant  of  power.  The  provisions  of 
the  powers  of  attorney  that  none  of  the  subscribers  shall  incur 
a  joint  liability,  but  shall  only  incur  a  limited  several  liabil- 
ity, clearly  makes  impossible  the  assumption  of  the  unlimited 
risk  required.  For  the  above  reasons  we  deem  it  necessary  to 
withhold  approval  of  all  applications  where  the  risk  is  to  be 
carried  by  indemnity  Exchanges  under  the  limitations  above 
mentioned. 

The  entire  structure  being  built  upon  the  powers  of  attor- 
ney, the  structure  itself  cannot  be  broader  than  its  founda- 
tion. It  seems  therefore  that  the  remedy  must  come  from  a 
change  in  system,  particularly  in  the  powers  of  attorney, 
which  should  be  so  changed  as  to  provide  that  the  liability  of 
the  Exchange  to  injured  workmen  and  their  dependents  is 
limited  only  by  the  amount  that  is  necessary  to  satisfy  their 
claims  under  the  compensation  law.  They  should  also  provide 
that  emergency  losses  should  be  covered  by  re-insurance,  and 
that  such  re-insurance  should  be  carried  in  a  company  or  com- 
panies of  such  responsibility  as  to  meet  the  approval  of  the  In- 
dustrial Accident  Board.  Another  reason  why  re-insurance  in 
the  line  above  suggested  is  necessary  is  the  fact  that  the  lia- 
bility of  members  of  the  Exchange  is  limited  and  is  merely  a 
several  liability,  not  a  joint  liability  such  as  is  the  case  in  mut- 
ual insurance  companies.  Under  this  limitation  of  the  liability 
of  the  members  of  the  Exchange,  there  would  be  no  means  of 
compelling  the  payment  by  such  members  of  the  money  neces- 
sary to  meet  the  emergency  losses,  and  therefore  such  emerg- 
ency losses  would  have  to  be  provided  for  by  re-insurance.  In 
the  arguments  presented  to  the  Board  by  the  representatives 
of  the  Inter-Insurance  Exchanges,  it  was  claimed  that  these 
emergencies  would  in  actual  practice  be  rare,  which  is  prob- 
ably true.  But  this  fact  would  be  no  reason  why  the  emerg- 
encies should  not  be  provided  for  so  as  to  make  certain  that 
the  employe  injured  would  receive  his  compensation.  If  the 
emergencies  are  rare  as  claimed,  this  ought  to  result  in  a  very 
low  rate  for  re-insurance  for  emergency  losses,  and  the  re- 


CONVICTS. 


397 


quirements  of  such  re-insurance  would  not  be  a  considerable 
burden.  The  requirements  of  Act  No.  278  of  Public  Acts  of 
1013  could  be  met  by  having  the  verified  statement  filed  with 
the  insurance  department  by  the  attorney  in  fact  of  each  Ex- 
change, set  forth  that  the  maximum  liability  for  any  one  acci- 
dent is  the  amount  necessary  to  pay  all  lawful  claims  of  the 
workmen  or  their  dependents  who  are  injured  by  such  acci- 
dent. 

It  is  the  opinion  of  the  Board  that  if  the  conditions  here 
enumerated  can  be  met  by  the  Inter-Insurance  Exchanges, 
that  the  question  of  their  carrying  compensation  insurance  in 
Michigan  can  be  worked  out. 


CONVICT,  INJURED  WHILE  AT  WORK  DURING 

PRISON  TERM,  NOT  ENTITLED  TO 

COMPENSATION. 


Opinion  by  the  Attorney  General: 

It  is  my  opinion  that  a  prisoner  working  on  state  account 
is  not  to  be  considered  as  an  employe  within  the  meaning  of 
the  act.  It  can  scarcely  be  said  that  there  is  any  contractual 
relation  between  the  State  and  such  prisoner,  in  view  of  the 
fact  that  the  latter  is  restrained  of  his  liberty  as  a  punishment 
for  crime,  neither  could  such  prisoner  be  considered  as  being 
in  the  employ  of  any  contractor  with  the  State  for  his  services, 
for  between  such  contractor  and  such  prisoner  there  is  no 


*A  number  of  the  Inter-Insurance  Exchanges  have  complied  with  the  above  and  are 
doing  compensation  business  in  the  State. 


398  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

privity  whatever,  consequently,  it  follows  that  a  prisoner  of 
the  State  who  is  injured  while  working  on  state  account  or 
while  working  on  contract  would  have  no  redress  under  the 
liability  Act. 

Respectfully  yours, 

GRANT  FELLOWS, 

Attorney  General. 


VOLUNTEER  FIREMEN  ARE  EMPLOYES  WITHIN  THE 
MEANING  OF  THE  COMPENSATION  L>AWT. 


Opinion  by  the  Attorney  General: 

Cities  and  Villages  are  authorized  by  the  laws  relating 
thereto  to  employ  men  to  protect  property  located  within  their 
confines  from  fire. 

Section  3277  Etseq,  Compiled  Laws;  and 
Section  2878  Etseq,  Compiled  Laws. 

This  can  be  accomplished  either  by  a  permanent  fire  depart- 
ment or  by  paying  for  the  help  as  needed,  namely, — by  the  so- 
called  volunteer  system.  In  very  many  cities  and  villages  the 
work  of  controlling  and  extinguishing  fires  is  done  by  volun- 
teer firemen  who  are  paid  at  a  given  rate  for  each  fire  as  it 
occurs. 

The  provisions  of  the  Workingmen's  Compensation  Law 
which  seem  to  be  applicable  are  as  follows: 


VOLUNTEER  FIREMEN.  399 

Part  1,  Section  5  "The  following  shall  constitute  employers  subject 
to  the  provisions  of  this  Act:  1,  The  State  and  each  County,  City, 
township,  incorporated  Village  and  school  district  therein."  ***** 

Part  1,  Section  7  "The  term  'employe'  as  used  in  this  Act  shall  be 
construed  to  mean:  1,  Every  person  in  the  service  of  the  State,  or  of 
any  County,  City,  township,  incorporated  village  or  school  district 
therein  under  any  appointment,  or  contract  of  hire,  express  or  im- 
plied, oral  or  written,  except  any  official  of  the  state,  or  of  any  county, 
city,  township,  incorporated  village  or  school  district  therein:  Pro- 
vided, that  one  employed  by  a  contractor  who  has  contracted  with 
the  County,  City,  township,  incorporated  village,  school  district  or  the 
state,  through  its  representatives,  shall  not  be  considered  an  employe 
of  the  State,  County,  city,  township,  incorporated  village  or  school 
district  which  made  the  contract." 


There  can  be  no  doubt  that  as  the  regularly  employed  fire- 
men in  cities  and  villages,  where  a  fire  department  with  a  paid 
force  is  maintained  would  come  within  the  provisions  of  the 
law,  the  same  as  other  employes  of  the  cities  or  villages;  this 
because  cities  and  villages  are  expressly  declared  to  be  employ- 
ers within  the  meaning  of  the  act,  and  employes  of  cities  and 
villages  are  declared  to  be  employes  within  the  meaning  of 
the  act.  As  a  general  proposition,  an  employe  is  one  who 
works  for  another. 

The  definition  of  employer  and  employe  as  given  in  the  Act 
does  not  seem  to  carry  with  it  any  particular  requirement  as 
to  the  period  of  employment,  nor  does  it  import  continuous 
employment. 

I  am  of  the  opinion  that  any  appreciable  period  of  time  in 
which  one  person  is  in  the  employ  of  another  would  be  suffi- 
cient to  constitute  the  relation  of  employer  and  employe  be- 
tween them.  Neither  does  the  act,  except  in  Section  2  of 
Part  II,  place  any  restrictions  on  the  kind  of  work  that  con- 
stitutes employment  within  the  meaning  of  the  law.  The  prin- 
cipal desideratum  is  that  the  relationship  exists  and  that  in- 
injury  is  received  in  the  course  of  the  employment.  These 
facts  being  established  and  the  employer  or  employe  not  being 
within  the  excepted  classes,  the  right  to  the  benefits  conferred 
by  the  Act  follow  the  injury. 


400  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Although  the  matter  is  not  free  from  doubt,  I  am  inclined 
to  the  opinion  that  your  inquiry  should  be  answered  in  the 
affirmative.  The  exact  or  approximate  compensation  to  which 
an  injured  volunteer  fireman  would  be  entitled  to,  would  in 
my  opinion  be  rather  difficult  of  computation  under  the  pro- 
visions of  section  2  of  part  II,  but  as  that  only  affects  the 
amount  recoverable  and  not  the  right  to  recover  I  shall  not 
further  enlarge  upon  it  in  this  opinion. 

Respectfully  yours, 

GRANT  FELLOWS, 

Attorney  General. 


STATE  MILITIA,  MEMBER  OF,  NOT  AN  EMPLOYE 

WITHIN  THE  MEANING  OF  THE 

COMPENSATION  LAW. 


Opinion  by  the  Attorney  General: 

Section  47  of  Act  84  'of  the  Public  Acts  of  1909  was  un- 
doubtedly intended  to  cover  cases  of  this  kind  and  to  invest 
the  Board  of  State  Auditors  with  discretion  in  connection 
with  the  granting  of  relief  to  the  families  of  officers  or  en- 
listed men  suffering  permanent  injury  or  death  while  engaged 
in  actual  service  within  the  State.  The  section  referred  to 
reads  as  follows: 

"In  case  any  officer  or  enlisted  man  shall  be  wounded  or  disabled 
while  in  service  in  case  of  riot,  tumult,  breach  of  the  peace,  resistance 
of  process,  or  whenever  called  in  aid  of  the  civil  authorities,  he  shall 
be  taken  care  of  and  provided  for  during  such  disability  at  the  ex- 
pense of  the  county  where  such  service  shall  have  been  rendered;  and 
in  case  of  death  or  permanent  disability  in  consequence  of  such  ser- 


STATE   MILITIA. 


401 


vice,  he  or  his  widow  and  children  or  next  of  kin  shall  receive  such 
relief  as  the  Board  of  State  Auditors  shall  determine  to  be  just  and 
reasonable,  payable  out  of  the  moneys  in  the  general  fund  of  the 
State  not  otherwise  appropriated." 

If  the  section  above  quoted  is  still  in  full  force  and  effect 
relief  may  be  afforded  in  accordance  with  its  provisions.  Not 
having*  been  expressly  repealed  by  any  subsequent  enactment 
it  must  be  deemed  to  be  operative  now  and  applicable  to  this 
and  similar  cases  unless  repealed  by  implication  by  Act  No. 
10  of  the  Public  Acts  of  1012,  First  Extra  Session,  commonly 
referred  to  as  the  Employers'  Liability  Act.  I  am  impressed 
however,  from  an  examination  of  the  latter  statute  that  it  was 
not  intended  to  cover  and  does  not  in  fact  apply  to  members 
of  the  National  Guard  when  engaged  in  service  in  accordance 
with  the  provisions  of  Act  No.  84  of  the  Public  Acts  of  1909. 
The  term  "employe,"  as  used  in  the  Employers'  Liability  Act, 
is  expressed  to  mean  "every  person  in  the  service  of  the  state 
under  airy  appointment,  or  contract  of  hire, 
express  or  implied,  oral  or  written  *  *  *  *."  It  is  thus 
clearly  indicated  that  the  relation  of  employer  and  employed 
under  this  Act  must  be  based  upon  a  contract  within  the  usual 
meaning  of  that  term.  It  is  extremely  doubtful  in  my  opinion 
if  the  relation  existing  between  the  state  and  a  member  of  the 
National  Guards  may  properly  be  so  considered  so  far  as  the 
case  before  us  is  concerned.  It  is  a  general  proposition  that 
the  meaning  of  terms  used  in  any  particular  legislative  enact- 
ment should  be  determined  in  accordance  with  the  spirit  and 
general  provisions  of  the  entire  measure.  I  find  nothing  in 
the  Employers'  Liability  Act  that  would  indicate  that  it  was 
the  intention  of  the  Legislature  that  the  same  should  be  ap- 
plied to  persons  engaged  in  Military  service  under  the  ordi- 
nary rules  and  regulations  governing  the  same.  Had  this 
class  been  within  the  contemplation  of  the  law  making  body 
at  the  time  of  the  passage  of  the  statute,  it  is  highly  probable, 
to  say  the  least,  that  provision  would  have  been  made  for  the 
extraordinary  liability  that  might  be  incurred  as  a  result  of 
51 


402  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

such  inclusion.  A  serious  disturbance  in  any  section  of  the 
State  of  such  a  nature  as  to  require  the  presence  of  any  con- 
siderable portion  of  the  State  Guards  might  naturally  be  ex- 
pected to  result  in  injury  and  perhaps  death  to  a  considerable 
number.  To  meet  such  a  contingency  the  Act  of  1912  makes 
no  suitable  provision,  thus  suggesting  the  inference  that  cases 
of  this  kind  were  not  intended  by  the  Legislature  to  be  within 
the  purview  of  the  Act. 

It  is  a  well  settled  rule  of  statutory  construction  that  re- 
peal by  implication  will  not  be  favored  by  the  courts.  Con- 
sidering in  connection  with  this  general  rule  the  underlying 
purpose  of  the  Employers'  Liability  Act  the  conclusion  seems 
unavoidable  that  Section  47  of  Act  84  of  1909  is  still  opera- 
tive. Under  this  Section  full  and  adequate  provision  may  be 
made  for  the  families  of  those  permanently  injured  or  suffer- 
ing death  while  engaged  in  Military  service.  The  Act  of  1912 
under  consideration  before  us  was  unquestionably  designed 
to  provide  for  the  relief  of  those  employes,  and  their  families 
who  were  not,  under  the  laws  of  the  State,  at  the  time  of  the 
passage  of  said  Act,  adequately  protected.  Construing  the 
Act  therefore  in  the  light  of  the  purpose  for  which  it  was 
passed  additional  strength  is  afforded  to  the  conclusion  that 
members  of  the  National  Guard  are  not  affected  by  its  pro- 
visions. I  am  strongly  impressed  that  a  contrary  interpreta- 
tion would  do  violence  to  both  the  spirit  and  the  letter  of  the 
statutes. 

Very  Respectfully  yours, 

GRANT  FELLOWS, 

Attornev  General. 


WARDS  OP  STATE.  403 


(WARDS  OF  STATE— INMATES  OF  BLIND  SCHOOL  NOT 
EMPLOYES. 


Opinion  by  the  Attorney  General: 


The  Employment  Institution  for  the  Blind  was  established 
in  accordance  with  the  provisions  of  Act  No.  169  of  the  Pub- 
lic Acts  of  1903.  Undoubtedly  the  purpose  of  this  Act  was 
to  provide  for  the  instruction,  care  and  maintenance  of  blind 
persons  who  are  capable  of  receiving  the  instruction  afforded 
by  said  institution  and  by  their  labor  or  services  to  earn  in 
part  at  least  the  cost  of  their  own  support.  I  am  impressed 
that  none  of  the  blind  inmates  of  the  institution  regardless  as 
to  whether  they  are  classed  as  apprentices,  wards  or  wage- 
workers  should  be  regarded  as  employes  within  the  meaning 
of  the  Workman's  Compensation  Act.  Clearly  these  inmates 
are  not  employes  of  the  state  in  the  usual  sense  in  which  the 
term  is  used;  such  people  are  not  given  employment  with  the 
idea  of  making  a  profit  for  the  state  out  of  their  labor  but 
rather  that  they  themselves  may  be  properly  cared  for  in  a 
state  institution  established  for  purely  charitable  purposes. 

Very  respectfully, 

GRANT  FELLOWS, 

Attorney   General. 


404  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

RULES  OF  PROCEDURE. 
I. 

SELECTION  OF  ARBITRATORS. 

It  is  a  maxim  of  the  law  that  no  man  can  act  as  judge  in 
his  ,own  case,  and  this  principle  extends  to  and  excludes  all 
persons  financially  interested  in  the  outcome  of  the  case,  to- 
gether with  their  agents,  officers,  and  attorneys.  Persons  so 
nearly  related  to  any  of  the  parties  in  an  arbitration  case  that 
they  may  be  fairly  deemed  to  be  financially  interested  in  the 
decision  are  also  excluded  under  this  principle.  The  rule  is 
therefore  established  by  the  Board  that  all  persons  who  fall 
within  any  of  the  above  named  classes  are  disqualified  from 
acting  as  arbitrators  in  cases  to  be  heard  before  committee  on 
arbitration  under  the  Workmen's  Compensation  Law. 


II. 


POSTPONEMENT   OF   CASES. 

The  compensation  law  provides  that  arbitration  be  had  in 
the  locality  where  the  accident  occurred.  This  is  for  the  ac- 
commodation of  parties  interested  and  to  save  expenses  for 
travel  and  mileage  for  themselves  and  witnesses.  In  all  arbi- 
tration cases  one  member  of  the  Board  goes  to  place  of  acci- 
dent, frequently  traveling  hundreds  of  miles  to  hear  the  case. 
It  is  apparent  under  these  conditions  that  a  postponement  of 
such  hearings  cannot  be  had,  and  it  is  necessary  for  the  parties 
to  be  prepared  for  arbitration  and  to  proceed  with  the  same 
at  the  time  and  place  set.  Any  other  rule  would  make  the 
administration  of  the  compensation  law  expensive  and  inef- 
fectual. The  parties  must  also  have  their  witnesses  ready  at 
the  time  and  place  set  for  arbitration  so  as  to  make  their 
proofs  complete. 


RULES  OF  PROCEDURE. 
III. 


405 


INSURER  DEEMED  PARTY. 

When  arbitration  is  ordered  in  the  case  of  any  employer  who 
is  insured,  notice  of  the  time  and  place  of  such  arbitration 
shall  be  given  both  to  the  employer  and  the  company  or  or- 
ganization carrying  the  risk ;  and  a  copy  of  the  award  or  judg- 
ment on  such  arbitration  shall  be  sent  by  mail  from  the  offices 
of  the  Industrial  Accident  Board  to  such  employer  and  also 
to  the  insurance  carrier.  In  all  such  cases  if  an  award  of 
compensation  is  made  it  shall  be  against  the  employer  and 
also  against  the  insurance  carrier,  both  of  whom  shall  be 
deemed  parties  to  such  proceeding. 


IV. 


AGREEMENTS  AND  AWARDS. 

In  all  cases  where  an  award  has  been  made,  or  -agreement  in 
^ai-d  to  compensation  entered  into  by  the  parties  and  ap- 
proved by  the  Board,  such  award  or  agreement,  as  the  case 
may  be,  shall  continue  in  force  until  modified  by  the  order  of 
the  Board,  or  by  a  written  agreement  of  the  parties  approved 
by  the  Board.  The  employer  may  not  stop  or  in  any  way 
change  the  rate  of  compensation  provided  for  in  such  award 
or  agreement  except  as  herein  provided.  In  cases  where  the 
employe  returns  to  work  at  the  termination  of  his  disability 
the  filing  of  the  final  receipt  for  compensation  will  be  deemed 
an  agreement  terminating  the  period  of  disability. 


V. 


GROUNDS  FOR  DENYING   LIABILITY  TO  BE  STATED. 

If  the  employer  denies  liability  in  case  where  a  claim  for 
compensation  is  filed  by  an  injured  employe  or  his  depend- 
ents, such  denial  shall  be  filed  with  the  Board  in  writing  by 


403  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

such  employer  and  shall  set  forth  with  reasonable  detail  and 
certainty  the  facts  and  circumstances  upon  which  he  relies  as 
a  defense  to  such  claim.  Upon  the  filing  of  such  denial  in  the 
office  of  the  Board,  a  copy  of  same  shall  be  furnished  to  the 
claimant,  so  that  he  will  have  such  seasonable  information  as 
to  the  nature  and  particulars  of  the  employer's  defense  as 
may  be  reasonably  necessary  to  enable  him  to  procure  wit- 
nesses and  prepare  for  the  hearing.  Eespondents  will  be 
limited  to  the  grounds  of  defense  so  stated  on  the  arbitration 
hearing  and  also  on  review  before  the  full  Board.  Provided, 
that  in  exceptional  cases  and  for  good  cause  shown  respond- 
ents may  be  permitted  to  amend  such  denial  of  liability,  which 
is  in  the  nature  of  a  plea,  but  such  amendment  will  not  be 
allowed  in  cases  wrhere  it  would  be  inequitable  or  result  in 
surprise  to  the  opposite  party.  Failure  or  refusal  to  season- 
ably file  such  denial  shall  be  deemed  an  admission  of  liabil- 
ity.1 

VI. 

WITNESSES    AND    PROOFS. 

The  arbitration  is  the  first  and  fundamental  hearing  in  con- 
tested cases,  and  is  held  at  the  place  where  the  accident  oc- 
curred in  order  to  make  such  hearing  reasonably  convenient 
and  inexpensive  to  the  parties.  The  proofs  should  be  fully 
taken  at  such  arbitration,  and  such  proofs  in  general  form  the 
record  and  basis  for  the  hearing  on  review  before  the  full 
Board.  Where  cases  are  taken  before  the  full  Board  for  re- 
view, additional  testimony  may  be  taken  when  necessary  by 
deposition  under  the  provisions  of  the  general  statutes  of  the 
State.  The  party  appealing  should  furnish  the  Board  with  a 
copy  or  transcript  of  the  proofs.  Witnesses  will  not  be  heard 
orally  before  the  full  Board  except  on  extraordinary  occa- 
sions, and  then  only  in  cases  where  permission  to  produce  and 
examine  such  witnesses  has  been  granted  by  the  Board  on  ap- 
plication prior  to  the  date  of  the  hearing. 


'One  of  the  fundamental  purposes  of  this  rule  is  to  prevent  parties  from 
concealing  their  defense  in  a  case  until  the  opposite  party  has  submitted  his 
proofs,  thereby  misleading  him  to  his  injury. 


RULES  OF  PROCEDURE.  407 

VII. 
FULL  BOARD  HEARINGS. 


I  Hearings  on  review  and  other  matters  coming  before  the  full 
„  Board  will  be  held  at  the  office  of  the  Board  in  the  city  of 
Lansing,  except  in  cases  where  the  Board  deems  it  advisable 
that  they  be  held  elsewhere.  On  such  hearings  the  time  al- 
lowed to  each  side  for  argument  or  oral  presentation  of  the 
case  shall  not  exceed  one  hour,  or  thirty  minutes  on  each  side. 
In  matters  heard  on  petition  before  the  Board,  the  time  for  oral 
argument  is  limited  to  one-half  hour,  or  fifteen  minutes  on  each 
side.  In  hearings  on  Stipulation  and  Waiver  the  time  for 
oral  argument  will  be  the  same  as  in  cases  heard  upon  review. 
Briefs  or  written  arguments  may  be  filed  with  the  Board  at 
or  before  the  time  of  such  hearing.  If  conditions  seem  to  re- 
quire it,  the  Board  may  permit  the  filing  of  briefs  or  written 
arguments  within  a  limited  time  after  the  hearing  on  review. 
Either  or  both  of  the  parties,  as  they  choose,  may  present  their 
case  on  such  hearing  by  briefs  or  written  arguments  without 
being  present  at  the  hearing. 


VIII. 


CONTESTED    MEDICAL    AND    HOSPITAL    BILLS. 

The  provision  of  law  authorizing  the  Industrial  Accident 
Board  to  pass  upon  bills  for  medical  and  hospital  services 
applies  only  in  cases  where  there  is  a  real,  bona  fide  dispute. 
Before  such  matter  can  be  brought  to  the  Board  for  adjust- 
ment, the  parties  are  required  to  make  an  earnest  effort  to 
reach  a  settlement  of  the  matter  between  themselves,  and  may 
appeal  to  the  Board  only  after  they  have  exhausted  the  ordi- 
nary means  of  bringing  about  such  settlement.  In  all  mat- 
ters of  this  kind  which  are  brought  before  the  Board,  the  per- 
son, firm,  or  corporation  applying  must  show  by  satisfactory 
proof  that  they  have  made  an  earnest  and  adequate  effort  to 
reach  a  settlement,  and  that  the  settlement  failed  through  no 


408  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

fault  of  theirs.  Where  bills  of  the  above  class  are  brought  be- 
fore the  Board  for  adjustment  by  persons  objecting  to  same, 
their  objections  will  be  considered  only  in  cases  where  they 
have  exhausted  the  ordinary  means  of  reaching  a  settlement 
before  making  application;  and  in  all  cases  where  such  bills 
are  presented  by  claimants  without  having  first  exhausted  the 
usual  means  of  reaching  a  settlement,  the  same  will  be  dis- 
missed without  prejudice  and  without  investigation  of  their 
merits. 

IX. 

POSTPONEMENT  OP  HEARINGS. 

At  all  hearings  on  review  or  petition  before  the  full  Board 
the  docket  is  so  arranged  that  the  cases  will  follow  each  other 
in  regular  succession.  The  arbitration  cases  require  a  large 
portion  of  the  time  of  the  members  of  the  Board  away  from 
Lansing,  and  when  cases  are  set  for  hearing  on  review  or  pe- 
tition such  hearings  must  proceed  in  accordance  with  the 
docket  and  be  disposed  of.  Parties  may  not  stipulate  to  post- 
pone such  cases  after  the  same  are  set  for  hearing,  and  post- 
ponement will  be  granted  by  the  Board  only  in  exceptional  in- 
stances. In  case  any  of  the  parties  or  their  attorneys  can- 
not be  present  or  represented  at  such  hearing,  a  reasonable 
time  will  be  given  to  file  a  brief  or  written  argument  in  the 
case. 

X. 

LUMP   SUM    PAYMENTS. 

It  is  manifest  that  the  clear  purpose  of  the  legislature  was 
to  provide  that  the  compensation  receivable  under  this  law 
should  go  to  the  persons  or  families  entitled  to  the  same  in 
weekly  payments,  it  being  the  judgment  of  the  legislature  that 
when  so  paid  it  would  more  effectually  meet  and  relieve  the 
wants  of  the  injured  employes  and  their  families,  than  if  paid 
in  a  lump  sum.  This  view  has  the  full  endorsement  and  con- 


RULES  OF  PROCEDURE.  409 

currence  of  the  Board.  Therefore,  lump  sum  payments  .will 
only  be  authorized  in  exceptional  cases  where  circumstances 
create  a  necessity  for  such  action.  Application  for  lump  sum 
payments  can  only  be  made  after  an  "Agreement  in  Regard  to 
Compensation"  has  been  filed  with  and  approved  by  the  Board, 
or  an  award  of  compensation  made;  and  such  application  is 
required  to  be  in  the  form  of  a  sworn  petition  setting  forth 
in  detail  the  facts  and  circumstances  on  which  application  is 
based.  Desire  of  the  applicant  to  go  to  another  state  or  coun- 
try, or  to  buy  property,  or  to  invest  in  business,  etc.,  do  not 
constitute  reasons  for  lump  sum  payment.  In  general,  condi- 
tions created  by  the  acts  of  the  injured  employe  or  his  depend- 
ents after  the  accident,  do  not  constitute  ground  for  such  pay- 
ment. As  a  general  rule,  the  circumstances  and  conditions 
that  will  justify  such  payment  are  those  existing  prior  to  the 
accident  or  created  by  it,  such  as  mortgage  indebtedness  on 
the  home  of  the  employe.  In  such  case  both  the  indebtedness 
and  attendant  conditions  must  be  set  forth  in  detail,  and  if  se- 
cured by  mortgage,  the  location  and  description  of  the  prop- 
erty must  be  given,  the  name  and  address  of  the  mortgagee, 
and  the  office  or  place  where  the  mortgage  is  filed  or  recorded. 


XI. 


APPEALS  TO  SUPREME  COURT. 

In  case  an  appeal  is  taken  to  the  Supreme  Court  by  cer- 
tiorari,  it  is  incumbent  upon  the  appellant  to  prepare  the  re- 
turn to  such  writ  in  much  the  same  way  that  a  bill  of  excep- 
tions is  prepared  in  cases  appealed  by  writ  of  error.  Such  pro- 
posed return  should  be  submitted  to  and  served  upon  the  op- 
posite party,  or  his  attorney,  so  as  to  give  opportunity  to  pre- 
pare and  submit  amendments  in  substantially  the  same  way 
as  in  settling  bills  of  exceptions.  The  appellant  at  the  time 
of  serving  the  proposed  return  on  the  opposite  party  should 
serve  such  opposite  party  with  notice  of  the  time  when  the 
proposed  return  will  be  presented  to  the  Board  for  settlement. 


410  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

This  practice  will  give  both  parties  an  opportunity  to  be  heard 
and  to  have  all  matters  which  they  deem  important  included 
in  such  return.  In  cases  where  the  proposed  return  is  agreed 
upon  between  the  parties,  such  agreement  may  be  signified  by 
a  stipulation  in  writing  attached  to  the  proposed  return. 


XII. 


OATH   OP   ARBITRATORS. 

In  all  cases  the  arbitrators  appointed  by  the  parties  shall, 
before  entering  upon  their  duties  as  such,  be  sworn  by  the 
chairman  of  the  committee  on  arbitration,  and  shall  subscribe 
the  following  oath  to  be  filed  with  the  other  papers  in  the  case, 
viz: 

"I,  do  solemnly  swear  that  I  will  faithfully  perform 
my  duty  as  arbitrator  in  this  cause  and  will  not  be  in- 
fluenced in  my  decision  by  any  interest,  or  feeling  of 
friendship  or  partiality  toward  either  party,  and  that 
I  am  not  attorney  or  agent  of  any  of  the  parties,  or 
financially  interested  in  the  result  of  the  case,  so  help 
me  God." 


MISCELLANEOUS  RULINGS.  411 


MISCELLANEOUS  RULINGS. 

COMPENSATION  FOR  LOSS  OF   MEMBERS  DOES  NOT 
DEPEND  ON  LOSS  OF  TIME. 

The  injured  employe  lost  two  fingers,  which  under  the  provisions  of 
the  Michigan  statute  is  deemed  equivalent  to  disability  for  65  weeks. 
He  in  fact  returned  to  work  some  three  weeks  after  the  accident, 
resuming  his  accustomed  occupation  at  the  same  wages  as  before 
the  injury.  The  employer  objects  to  paying  the  65  weeks'  compen- 
sation, and  is  of  the  opinion  that  the  specific  amount  provided  for 
the  loss  of  said  fingers  should  not  be  paid  in  this  case  because  the 
employe  is  earning  the  same  wages  as  before  the  accident. 

By  the  Board:  "Under  the  statement  of  facts  in  your  let- 
ter the  injured  employe  is  entitled  to  receive  f  10.00  per  week 
for  a  period  of  65  weeks,  such  payments  to  be  made  weekly. 
The  moment  that  the  accident  occurred,  causing  the  loss  of 
fingers  as  stated  the  company  became  indebted  to  him  in  the 
sum  of  |650.00,  payable  weekly  as  above,  and  his  right  to  re 
ceive  said  sum  in  compensation  for  the  loss  of  his  fingers  does 
not  depend  on  his  loss  of  time  and  whether  he  returns  to  work 
or  the  wages  he  receives  thereafter.  The  law  is  so  framed  be- 
cause of  the  fact  that  throughout  the  remainder  of  his  life  he 
will  be  deprived  of  the  fingers  so  lost.  The  Industrial  Acci- 
dent Board  has  no  authority  to  either  vary  or  waive  the  ex- 
pressed provision  of  this  law.  The  law  imposes  upon  the 
Board  the  duty  to  see  that  the  law  is  carried  out  in  every  re- 
spect, and  does  not  permit  any  compromises  to  be  made.  While 
the  injury  may  not  keep  the  employe  from  his  work  for  any 
considerable  length  of  time,  still  the  injury  will  result  in  his 
being  handicapped  by  being  deprived  of  the  fingers  so  lost  for 
the  remainder  of  his  life,  and  the  law  expressly  fixes  the  sum 
that  he  is  entitled  to  receive  as  compensation  for  such  loss 
without  reference  to  his  employment  or  subsequent  relations 
to  his  employer." 


412  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

PLACE  OF  MAKING  PAYMENT. 

Questions  as  to  the  manner  and  place  of  making  weekly  pay- 
ments under  the  compensation  law  to  injured  employes  have 
arisen  in  so  many  cases,  a  general  ruling  by  the  Board  on  the 
point  seems  desirable.  In  some  instances  complaint  is  made 
by  persons  receiving  compensation  that  they  are  required  to  go 
an  unreasonable  distance  to  the  place  of  payment  designated 
by  the  employer,  and  that  much  time  and  effort  each  week  is 
thus  expended  in  going  to  and  from  such  place  of  payment. 
The  compensation  law  is  silent  as  to  the  place  of  payment,  the 
language  of  the  statute  being,  <4The  employer  shall  pay  or 
cause  to  be  paid  to  the  injured  employe,  etc."  The  obligation 
to  make  payment  being  imposed  by  law  on  the  employer  with- 
out specifying  the  manner  and  place  of  payment,  the  common 
law  rule  established  in  Michigan  and  elsewhere  would  apply, 
and  this  rule  requires  that  payments  be  made  at  the  place 
where  the  person  entitled  to  receive  such  payment  resides. 
30  Cyc,  page  1185;  Mclntyre  vs.  State  Ins.  Co.  52  Mich.  194. 

It  is  the  opinion  of  the  Board  that  all  friction  on  this  point 
should  be  avoided  as  far  as  posible  by  mutual  arrangement 
between  employer  and  employe  as  to  the  place  of  payment, 
and  that  neither  should  be  arbitrary  or  unreasonable  in  the 
matter.  Pointing  out  in  this  manner  the  legal  rights  of  the 
employe  entitled  to  receive  weekly  payments  of  compensation 
will  no  doubt  cause  the  removal  of  any  arbitrary  requirements 
by  employers  as  to  the  place  of  payment,  and  thereby  remove 
the  apparently  needless  friction  that  has  arisen  in  that  re- 
gard. 

Some  employers  and  some  of  the  liability  companies  have 
already  adopted  a  payment  voucher,  similar  in  kind  to  those 
which  have  long  been  used  by  fire  insurance  companies  for 
payment  of  losses,  having  attached  duplicate  receipts.  The 
payee  must  indorse  the  voucher  and  sign  the  receipts  before 
The  same  can  be  cashed,  and  in  practice  the  genuineness  of 
such  signature  is  in  most  cases  guaranteed  by  local  banks  and 
business  men  through  whose  hands  the  voucher  passes.  When 


MISCELLANEOUS  RULINGS.  413 

ie  voucher  is  returned  paid,  one  of  the  receipts  can  be  filed 
>y  the  employer  and  the  other  sent  to  the  Industrial  Accident 
toard.  This  plan  seems  to  furnish  a  system  for  making  pay- 
lents  of  compensation  through  the  mails  which  is  apparently 
ife  and  satisfactory  to  all  parties. 


PAYMENT  OF  COMPENSATION  TO  MINORS. 

The  question  has  been  frequently  raised  before  the  Indus- 

•ial  Accident  Board  as  to  whether  a  guardian  should  be  ap- 

>ointed  before  payment  of  compensation  can  be  made  to  an 

ijured  employe  who  is  under  21  years  of  age.    A  large  nuin- 

jr  of  cases  have  arisen  where  the  injured  employes  are  minors 

md  in  some  of  these  cases  the  injuries  were  comparatively 

slight  and  the  compensation  would  scarcely  more  than  pay  the 

expense  of  a  guardianship.    The  Board  has  carefully  examined 

ie  provisions  of  the  statute  upon  this  point,  and  has  reached 

te  conclusion  that  in  the  majority  of  cases  at  least  the  com- 

msation  should  be  paid  direct  to  the  injured  minor.     The 

>rovision  of  the  law  upon  which  this  conclusion  is  based  is 

found  in  subdivision  2,  section  7  of  part  1  of  the  act,  and  is  as 

>llows : 

"Including  minors,  who  are   legally  permitted   to  work  under   the 
iws  of  the  State,  who,  -for  the  purposes  of  this  act,  shall  be  considered 
the  same  and  have  the  same  power  to  contract  as  adult  employes" 

The  evident  purpose  of  this  provision  of  the  statute  was  to 
i.void  all  unnecessary  delay  and  expense  to  minors  in  the  col- 
lection of  and  receipting  for  compensation  to  which  they  might 
entitled.     This,  of  course,  contemplates  that  the  pay- 
of  compensation   will   be   made   strictly  in  accordance 
ith  the  statute,  in  weekly  installments,  and  will  go  to  the  in- 
jured minor  in  substantially  the  same  manner  in  which  his 
rages  were  paid  before  his  injury,  without  the  intervention  of 
guardian  or  trustee.    In  cases  where  any  question  arises  be- 
reen  the  injured  minor  and  his  parents,  wre  think  the  matter 
:-an  be  readily  arranged  so  as  to  have  the  receipts  for  compeu- 


414  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

sation  signed  by  the  parents  as  well  as  by  the  injured  minor. 
It  seems  to  be  the  plain  intention  of  the  act  to  make  the  pay- 
ments of  compensation  to  injured  minors  a  matter  as  simple 
and  expeditious  as  was  the  payment  of  their  wages  before  the 
injury. 

The  provisions  of  section  14,  part  3,  of  the  Compensation 
Law  are  not  necessarily  in  conflict  with  the  above  construc- 
tion. The  latter  section  was  intended  to  apply  in  cases  where 
the  injury  resulted  in  the  mental  incompetency  of  the  employe, 
and  in  death  cases  where  the  dependents  are  minors,  as  in 
these  cases  a  guardian  or-  next  friend  would  be  clearly  neces- 
sary. The  legislature  has  power  to  fix  the  age  at  which  a  per- 
son becomes  competent  to  enter  into  contracts  and  transact 
business,  and  there  seems  to  be  no  legal  reason  why  that  age 
should  not  be  fixed  below  21  years  with  reference  to  the  opera- 
tion of  this  particular  act  and  collection  and  receipting  for 
compensation  thereunder. 


LOSS  OF  USEFULNESS  OF  MEMBER. 

The  question  in  this  case  relates  to  the  payment  of  a  specific  amount 
for  the  loss  of  a  portion  of  a  finger,  claimed  to  be  less  than  one 
phalange.  The  employer  contended  that  the  point  of  amputation 
was  controlling. 

By  the  Board :  The  action  of  the  surgeon  in  amputating  a 
finger,  or  in  failing  to  amputate  it,  or  in  choosing  the  point  of 
amputation  is  not  controlling  in  all  cases  of  this  kind.  Each 
case  depends  for  its  decision  upon  the  particular  facts  relat- 
ing to  the  finger,  and  these  might  relate  to  the  point  of  ampu- 
tation, or  the  fact  that  the  finger  or  a  portion  thereof  had  been 
rendered  useless  without  being  amputated.  The  statute  rela- 
tive to  the  loss  of  the  first  phalange  cannot  reasonably  be  con- 
strued to  apply  only  in  cases  where  the  finger  in  unjointed  and 
the  amputation  is  precisely  on  the  joint.  The  place  of  ampu- 
tation should  be  determined  on  the  principles  of  what  -consti- 
tutes good  surgery,  the  controlling  thought  being  to  obtain 
the  best  result  for  the  injured  person.  This  might  result  in 


(MISCELLANEOUS  RULINGS.  415 

he  point  of  amputation  being  a  little  below  or  a  little  above 
he  first  joint.    If  the  loss,  in  case  of  such  amputation,  is  sub- 
tantially   the   first  phalange,   it  should  be  treated   as   such 
ven  though  in  some  cases  it  was  a  trifle  more  and  in  others  a 
rifle  less.     The  real  test  in  such  cases  is,  as  to  whether,  by 
reason  of  the  amputation,  the  injured  person  has  lost  all  that 
*•       is  useful  of  the  first  phalange.     The  Board  is  further  of  the 
opinion  that  in  case  no  part  of  the  finger  is  amputated  and  the 
injury  is  such  as  to  entirely  destroy  the  usefulness  of  the  first 
phalange  or  the  entire  finger,  in  that  event  the  injured  person 
has  lost  the  first  phalange  or  the  finger,  as  the  case  may  be,  as 
completely  as  if  the  same  had  been  amputated. 


PAYMENT  OF  HOSPITAL  EXPENSE  AFTER  FIRST 
THREE  WEEKS. 

In  this  case  the  injured  employe  was  being  treated  at  the  hospital 
and  could  not  be  discharged  at  the  end  of  the  first  three  weeks.  The 
hospital  authorities  wish  to  know  the  source  from  which  they  are  to 
be  paid  for  further  service  rendered.  The  employer  writes  as  fol- 
lows: "It  was  agreed  that  we  withhold  payment  of  the  weekly 
compensation  until  such  a  time  as  the  injured  could  be  discharged. 
We  would  then  pay  the  first  three  weeks  ourselves,  and  for  the  re- 
maining time  we  would  pay  the  hospital  from  the  amount  of  the  em- 
ploye's weekly  compensation,  and  then  turn  over  to  him  the  balance, 
if  any." 

By  the  Board:  "The  Industrial  Accident  Board  feels  that 
your  suggestion  to  withhold  payment  of  weekly  compensation 
and  to  pay  hospital  and  medical  charges  after  the  first  three 
weeks  therefrom,  and  then  turn  over  the  balance,  if  any,  to 
the  injured  employe,  cannot  be  approved.  If  you  will  consider 
for  a  moment  the  rights  of  the  injured  man  granted  to  him  by 
the  statute,  we  think  that  it  will  be  apparent  that  neither 
your  company  nor  the  Industrial  Accident  Board  have  any 
power  to  expend  or  appropriate  the  money  to  which  he  is  en- 
titled for  compensation.  The  law  provides  that  this  compen- 
sation shall  be  paid  direct  to  the  injured  man  and  this  Board 
has  no  power  to  divert  such  payment  from  him  or  authorize 


416  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

11  to  be  done.  We  think  that  the  payment  by  you  of  any  part 
of  this  compensation  to  the  hospital,  or  to  the  doctors  or 
others,  would  be  no  defense  to  a  claim  for  such  compensation 
that  the  injured  man  might  afterwards  assert  against  you.  He 
ip  entitled  to  payment  of  compensation  without  waiting  for 
his  recovery  or  for  an  adjudication  of  the  amount,  and  if  it  is 
paid  he  will  in  most  cases  be  able  to  make  provision  for  his 
treatment  and  care." 

MEDIQAL  AND  HOSPITAL  TICKETS. 

Under  the  law  the  employer  is  liable  for  the  first  three  wreeks 
medical  and  hospital  service  and  medicine,  when  the  same  are 
needed.  The  employer  cannot  avoid  his  duty  in  this  respect 
by  deducting  from  the  wages  of  his  employe  small  sums  of 
money  at  intervals  to  pay  for  a  hospital  ticket  or  membership 
in  a  hospital  or  medical  association  which  is  to  furnish  the 
above  service  in  case  of  accident.  The  effect  of  such  procedure 
would  be  to  shift  the  burden  of  paying  for  such  service  from 
the  employer  to  the  employe.  In  this  case  the  hospital  ticket 
was  paid  for  by  money  deducted  from  the  wages  of  the  em- 
ploye, and  when  injured,  the  medical  and  hospital  service  was 
furnished  through  said  ticket  and  membership.  The  physicians 
and  hospital  have  already  been  paid  through  the  ticket,  and 
therefore  they  have  no  further  claim.  The  employe  in  fact 
paid  for  the  hospital  and  medical  service,  and  the  fact  that  he 
paid  for  the  same  through  a  hospital  ticket  or  some  hospital 
organization,  is  no  concern  to  the  employer.  The  employe 
bought  and  paid  for  it,  and  owned  it  as  much  as  his  coat  or 
hat.  It  therefore  seems  to  leave  the  plain  question  of  the  em- 
ployer paying  to  the  injured  employe  the  reasonable  value  of 
the  medical  and  hospital  treatment  which  he  received  during 
the  first  three  weeks  following  the  injury.  The  employer  is 
liable  for  the  payment  of  the  same,  in  the  opinion  of  the  Board, 
and  the  case  is  not  essentially  different  from  what  it  would 
be  if  the  injured  employe  had  in  fact  paid  the  regular  rates  for 
such  hospital  and  medical  service  at  the  time  the  same  were 
furnished. 


MISCELLANEOUS  RULINGS.  417 

MINERS  RECEIVING  PART  PAY  IN  SUPPLIES. 

Miners  in  the  coal  region  are  accustomed  to  buy  supplies  from  the 
company.  A  form  of  ticket  is  issued  and  the  amount  of  purchases 
is  deducted  from  the  miner's  earnings.  When  supplies  are  purchased 
from  time  to  time  the  amount  is  punched  in  the  ticket.  Question: 
Is  the  rate  of  compensation  in  case  of  an  injury  to  a  coal  miner 
to  be  based  on  his  earnings  less  the  cost  of  supplies  so  purchased? 

By  the  Board:  "As  a  general  proposition,  the  amount  of 
money  the  miner  is  entitled  to  receive  for  the  work  he  does 
constitutes  his  wages  or  earnings.  If  he  gets  from  the  company 
during  the  week  articles  of  clothing,  tobacco,  etc.,  and  the 
same  are  charged  against  and  deducted  from  his  wages  for 
that  week,  this  would  not  constitute  a  reduction  of  the  amount 
of  money  earned  by  the  miner  during  the  week,  but  would 
merely  be  the  spending  of  a  portion  of  the  amount  earned.  In 
general,  it  seems  that  this  same  rule  would  apply  to  other  and 
different  articles  furnished  a  miner  from  the  company's  store 
and  charged  and  deducted  from  his  wages.  This  might  per- 
haps be  modified  by  the  contract  or  scale  in  force  between  the 
miners  and  the  company,  if  there  are  any  agreements  in  such 
scale  that  would  have  the  effect  of  causing  such  modification, 
which  we  do  not  asume  to  decide.  There  may  be  special  cir- 
cumstances also  in  some  cases,  and  in  all  disputed  cases  the 
parties  on  both  sides  will  be  given  a  full  hearing  both  on  the 
facts  and  the  law,  before  the  Board  will  render  a  final  de- 
cision." 


RE-EMPLOYMENT  NO  PART  OF  SETTLEMENT. 

After  the  employe  in  question  recovered  from  a  serious  injury  a 
settlement  was  proposed  for  less  than  the  full  amount  of  compensa- 
tion provided  for  in  the  law,  the  further  consideration  for  such 
settlement  being  that  the  employe  was  to  be  reinstated  by  the  em- 
ployer to  the  position  which  he  occupied  before  the  injury.  When 
this  proposed  settlement  was  submitted  by  the  employer,  approval 
was  refused  for  the  following  reasons: 
53 


418  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

By  the  Board:  The  matter  of  reinstating  an  employe  to 
the  position  he  occupied  before  the  injury  should  not  enter 
into  the  matter  of  settlement  and  cannot,  under  the  law,  be 
in  any  way  considered  by  the  Board.  When  an  accident 
occurs  to  an  employe  as  in  this  case,  causing  the  loss  of  cer- 
tain fingers,  the  employer  immediately  becomes  indebted  to 
such  injured  employe  for  an  amount  fixed  by  the  law,  which 
indebtedness  it  becomes  his  duty  to  honorably  discharge  by 
payment.  In  such  case,  if  the  employer  discriminates  against 
the  injured  employe  by  refusing  to  reinstate  him  because  he 
insisted  on  the  payment  of  the  amount  so  due  him  for  the  in- 
jury, such  action  would  be  morally  and  legally  wrong. 

LUMP   SETTLEMENT   DURING   DISABILITY. 

The  employe's  hand  was  severely  injured  and  the  ultimate  result  of 
the  injury  uncertain.  The  employe  and  employer  desire  to  enter 
into  an  agreement  as  to  the  probable  period  of  disability  and  make 
settlement  therefor  by  a  lump  sum  payment.  Held  that  the  Board 
will  not  approve  settlement  where  period  of  disability  is  presumed 
or  estimated. 

As  a  result  of  the  injury,  the  employe's  right  hand  has  been 
rendered  practically  useless,  but  there  is  a  prospect  of  making 
the  hand  useful,  and  perhaps  as  good  as  ever,  by  a  surgical 
operation.  However,  the  Board  cannot  act  upon  probable  re- 
sults of  such  operation,  and  cannot  make  an  order  that  will 
discharge  entirely  the  employer  from  liability  upon  any  show- 
ing as  to  the  prospects  of  removing  the  disability  that  now 
exists.  Time  alone  will  determine  whether  such  disability  can 
be  removed.  The  Board  advises  that  the  employer  advance 
enough  money  to  defray  the  expense  of  the  proposed  opera- 
tion. If  such  operation  is  successful  and  removes  the  disabil- 
ity both  the  employer  and  employe  will  be  benefited. 

PARTIAL  DISABILITY;  DUTY  TO  SEEK  EMPLOYMENT. 

An  employe  who  is  recovering  from  an  injury,  and  who  has 
recovered  so  far  that  the  disability  is  only  partial,  cannot  rea- 
sonably be  required  in  his  partially  disabled  condition  to  go 


MISCELLANEOUS  RULINGS.  419 

imong  strangers  looking  for  work.     Such  requirement  would 
lot  be  reasonable,  and  the  probabilities  of  his  obtaining  work 
if  required  to  so  seek  it  would  be  very  remote.    On  the  other 
tand  if  his  employer  has  work  suitable  for  him  to  perform  in 
iis  partially  disabled  condition,  and  which  he  can  do  without 
causing  suffering  or  inconvenience,  and  offers  to  give  him  such 
work,  then  it  is  the  duty  of  such  employe  to  accept  the  work 
tendered   and  thereby  reduce  the  liability  for  compensation. 
Thai  if  the  employer  has  no  such  suitable  work,  or  having  such 
work  fails  to  tender  it  to  the  injured  employe,  the  compensa- 
tion cannot  be  reduced  upon  the  theory  that  there  are  classes 
of  work  which  he  is  able  to  do  and  which  he  might  obtain  per- 
haps if  he  diligently  sought  for  it,  and  which  on  the  other 
hand  lie  might  not  be  able  to  obtain  at  all. 


METHOD  OF  PAYING  COMPENSATION   FOR  LOSS  OF 
MOEE  THAN  ONE  FINGEB. 

Injured  employe  lost  index  (35  weeks),  second  (30  weeks)  and  third 
(20  weeks)  fingers.  Question  raised  as  to  whether  payment  should 
be  made  at  the  rate  of  50%  of  wages  for  each  finger  each  week  or 
50%  of  salary  for  85  weeks.  Held,  that  latter  is  correct  method. 

The  Industrial  Accident  Board  has  considered  the  question 
as  to  the  manner  of  payment  in  a  case  where  three  fingers  are 
lost  by  an  accident  to  an  employe.  The  conclusion  reached  by 
the  Board  is  that  the  rate  of  payment  in  such  a  case  is  one- 
half  of  the  weekly  wages  of  such  employe,  and  that  the  num- 
ber of  weeks  for  which  such  weekly  payments  shall  continue  is 
to  be  determined  by  the  number  of  fingers  and  the  schedule  of 
compensation  for  the  particular  fingers  lost.  There  is  no  pro- 
vision of  law  by  which  more  than  Ten  (flO.OO)  Dollars  per 
week  could  be  paid,  and  this  fact  would  make  improbable  and 
unworkable  the  theory  that  weekly  payments  for  each  finger 
lost  should  be  made  each  week,  continuing  until  the  claim  of 
the  less  valuable  fingers  drop  out  of  the  account,  and  until  the 
one  most  valuable  is  fully  paid  for.  The  same  rule  would  ap- 
ply in  case  of  toes  or  other  members. 


420  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

PAYMENTS  TO  BE  MADE  WEEKLY. 

The  Board  has  carefully  considered  the  question  raised  by 
a  considerable  number  of  employers  of  labor  in  the  State,  as  to 
whether  payments  of  compensation  under  the  law  may  not  be 
made  monthly  or  bi-weekly  instead  of  being  made  in  weekly 
payments.  The  provision  of  the  law  is  plain  requiring  such 
payments  to  be  made  weekly.  There  is  no  power  vested  in  the 
Board  to  suspend  or  modify  this  provision  of  the  law  or  to 
substitute  for  it  bi-weekly,  monthly  or  quarterly  payments. 
From  the  language  used  throughout  the  Act,  it  seems  appar- 
ent that  the  clear  purpose  of  the  legislature  was  to  provide 
that  compensation  receivable  under  this  law  should  go  to  the 
persons  or  families  entitled  to  the  same  in  weekly  payments, 
and  that  it  was  the  opinion  of  the  legislature  that  compensa- 
tion paid  weekly  would  more  effectually  meet  the  wants  and 
relieve  the  distress  of  injured  employes  and  their  families 
than  if  a  greater  interval  of  time  elapsed  between  such  pay- 
ments. The  question  of  changing  the  time  of  making  payments 
is  one  for  the  legislature,  if  there  is  real  ground  for  complaint 
on  account  of  the  present  provisions. 


COMPENSATION  NOT  PAYABLE  TO  ADMINISTRATOR. 

There  is  no  provision  of  the  compensation  law  authorizing 
the  payment  of  compensation  in  death  cases  to  an  adminis- 
trator of  the  estate  of  a  deceased  employe.  The  statutes  of 
this  state  commonly  known  as  the  "death  act"  and  as  "sur- 
vival act"  expressly  provide  for  suit  and  recovery  by  an  ad- 
ministrator in  cases  brought  for  causing  wrongful  death,  un- 
der the  above  acts  respectively,  but  this  right  of  the  adniinis- 
Iralor  is  created  by  such  statutes.  Such  administrator  has  no 
right  to  claim  or  receive  any  compensation  payable  under  the 
Michigan  Workmen's  Compensation  Law.  The  act  expressly 
provides  that  in  death  cases  the  compensation  shall  be  paid 
to  the  dependents  of  the  employe,  and  such  payments  shall 
be  made  direct  to  them  without  the  intervention  of  an  adminis- 


MISCELLANEOUS  RULINGS.  421 

•ator  or  trustee.  In  case  any  of  such  dependents  are  minors 
>r  mentally  incompetent,  a  guardian  may  be  appointed  by  the 
>roper  Probate  Court. 

PARTIAL  INCAPACITY  AFTER  FOURTEEN  DAYS. 

ie  employe  was  totally  incapacitated  for  fourteen  days  and  re- 
turned to  work  on  the  fifteenth  day  at  a  reduction  of  wages.  He 
has  received  50%  of  his  loss  in  salary  for  six  weeks  and  the  ques- 
tion that  arises  is,  should  he  receive  compensation  for  the  first  two 
weeks,  and  if  so,  how  much? 

It  is  the  opinion  of  the  Industrial  Accident  Board  that  inas- 
luch  as  the  incapacity  resulting  from  the  accident  (part  be- 
ig  total  and  rest  partial  disability)  continued  for  more  than 
iight  weeks,  as  it  did  under  the  statement  of  facts,  the  em- 
)loye  would  be  entitled   to   compensation  for  the   first  two 
.'eeks  under  Section  3  of  Part  II  of  the  Act.  Inasmuch  as  the 
[isability  for  the  first  two  weeks  was  total,  it  is  the  opinion 
of  the  Board  that  for  said  first  two  weeks  he  .should  receive 
compensation  for  total  disability. 

VIOLATION  OF  SHOP  RULES. 

It  is  the  opinion  of  the  Board  that  a  mere  violation  of  rules 
or  instructions  of  the  employer  would  not  constitute  wilful 
and  intentional  misconduct  within  the  meaning  of  the  act.  It 
would  have  to  be  shown  at  least  that  the  violation  was  inten- 
tional and  wilful,  and  not  through  inadvertance  or  inatten- 
tion. The  question  as  to  what  constitutes  wilful  and  inten- 
tional misconduct,  will  in  most  cases  be  a  question  of  fact,  de- 
pending upon  the  nature  of  the  act  complained  of  and  the  cir- 
cumstances surrounding  the  particular  accident. 

POSTING  OF  NOTICES  BY  EMPLOYERS. 

On  the  question  of  posting  notices,  no  fixed  rule  can  be  laid 
down  that  will  be  applicable  to  the  infinite  variety  of  circum- 
stances and  conditions  found  in  the  various  industries  of  the 


422  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

state.  The  employer  should  in  good  faith  endeavor  to  so  post 
these  notices  as  to  effectually  bring  to  the  knowledge  of  his 
employes  the  fact  that  he  is  operating  under  the  workmen's 
compensation  law.  The  provisions  directing  the  manner  and 
place  of  posting  notices  found  in  Sec.  6,  Part  1  of  the  law  shall 
be  closely  followed,  and  will  be  found  applicable  to  the  situa- 
tion in  most  industries. 


POSTING  OF  NOTICES  BY  MUNICIPALITIES. 

It  is  the  opinion  of  the  Board  that  the  posting  of  notices  in 
case  of  the  erection  of  a  building  or  other  work  done  by  a 
municipality,  is  not  required  or  contemplated  by  the  law.  The 
municipality  comes  under  the  provisions  of  the  law  not  by 
election  but  by  force  of  the  statute  itself.  All  persons  dealing 
with  a  municipality  are  bound  to  take  notice  of  this  fact,  just 
the  same  as  they  are  bound  to  take  notice  of  any  other  law 
which  by  its  own  force  becomes  binding  and  operative.  The 
office  and  purpose  of  the  notices  to  be  posted  under  certain 
provisions  of  the  law  is  to  bring  to  the  employe  knowledge  and 
notice  not  of  the  law  itself,  but  of  the  action  taken  by  the  em- 
ployer, to-wit,  his  election  to  be  subject  to  its  provisions. 


OFFICER  OF  A  CORPORATION  MAY  BE  EMPLOYE; 
PARTNER,  NOT. 

The  question  whether  an  officer  of  a  corporation  who  is  employed 
by  it  as  a  workman  is  entitled  to  compensation  if  injured,  is  raised 
in  this  case. 

The  employer  is  the  corporation,  which  is  the  artificial  per- 
son created  by  law,  and  which  is  a  distinct  entity  entirely 
separate  and  different  from  its  officers.  The  injured  man  un- 
der the  facts  shown  in  this  case  was  working  as  engineer  and 
general  all-round  machine  man,  was  receiving  wages  for  his 
work,  which  were  paid  by  the  corporation.  The  fact  that  he 
also  held  the  office  of  Vice-President  in  the  opinion  of  the 


I  MISCELLANEOUS  RULINGS.  423 

Board  would  not  in  any  way  effect  his  right  to  compensation. 
The  term  "employe"  is  defined  in  Section  7,  Part  I  of  the  Act 
as  "Every  person  in  the  service  of  another  under  any  contract 
of  hire,  express  or  implied,  oral  or  written."  There  seems  to 
be  no  question  but  that  the  injured  man  was  at  the  time  of  the 
injury  in  the  service  of  the  corporation  under  a  contract  of 
hire. 

The  rule  is  different  in  cases  where  the  injured  man  is  a 
member  of  a  partnership,  because  there  the  partners  are  in 
fact  the  employers  and  each  separately  must  be  treated  as  an 
employer  rather  than  an  employe. 


MUNICIPALITIES,  INSURANCE  BY,  OPTIONAL—MAY 
INSURE  FART. 

The  question  is  raised  as  to  whether  a  county  may  take  out  insurance 
covering  only  a  portion  of  its  employes,  for  instance  its  County 
Road  Department. 

By  the  Board:  "A  municipality  comes  under  the  opera- 
tion of  the  Workmen's  Compensation  Law  without  filing  an 
acceptance,  the  Law  being  compulsory  as  to  it.  The  munici- 
pality is  not  required  to  carry  any  insurance,  but  may  insure 
all  or  any  portion  of  its  employes  as  it  may  desire.  There  is 
no  objection  whatever  from  a  legal  standpoint  to  the  County 
Road  Commission  carrying  insurance  covering  its  employes. 
The  insurance  carrier  in  such  case  would  be  liable  only  in  case 
of  the  injuries  to  the  class  of  employes  covered  by  the  contract 
of  insurance. 


STATUS  OF  FOREIGN  CONSULS  IN  COMPENSATION 

CASES. 

The  leading  authority  on  the  status  of  foreign  consuls  in 
death  cases  is  Rocca  v.  Thompson,  223  U.  S.,  333.  This  case 
was  decided  by  the  United  States  Supreme  Court  on  February 
19,  1912.  It  came  up  from  the  State  of  California  and  was 


424  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

argued  and  briefed  by  able  counsel.  The  point  at  issue  was 
whether  the  Italian  Consul  or  the  Public  Administrator  of 
California  was  entitled  to  administer  the  estate.  The  treaties 
are  cited  and  construed,  the  general  rule  being  that  the  treaty 
provision  itself  gives  authority  to  the  consul  to  act  only  in 
cases  where  there  is  no  known  resident  heir,  executor  or  trus- 
tee, and  then  said  right  is  to  intervene,  protect  and  preserve 
the  estate  until  proper  administration  can  be  taken  out  in 
the  local  courts,  and  to  intervene  in  such  administration  for 
the  purpose  of  safe-guarding  the  rights  of  foreign  subjects.  It 
holds  that  there  is  no  right  of  administration  in  the  foreign 
consul  without  a  judicial  grant  of  such  authority,  and  this 
rule  applies  to  all  treaties  with  all  of  the  foreign  countries, 
inasmuch  as  most  of  them  contain  the  "most  favored  nation 
clause"  under  which  one  country  is  entitled  to  claim  all  of 
the  rights  and  privileges  granted  to  any  other  nation  by 
treaty. 

As  conclusive  on  the  right  of  administrators  it  is  stated  on 
page  333,  that  in  1894  the  Italian  Ambassador  took  up  with 
the  United  States  and  urged  a  treaty  arrangement  under 
which  the  Italian  Consuls  in  the  United  States  be  authorized 
to  administer  and  settle  estates  of  their  deceased  country- 
men. Edwin  F.  Uhl  of  Grand  Rapids,  Michigan,  was  then 
Acting  Secretary  of  State  and  declined  to  favorably  consider 
such  proposal,  his  action  being  based  mainly  upon  the  follow- 
ing grounds,  viz: 

(1)  That  the  administration  of  estates  in  this   country  is  under 
the  control  of  the  respective  states,  and  for  that  reason  the  proposed 
international  agreement  should  not  be  made. 

(2)  That   the    practical    difficulties   made   it   inadvisable,   such   as 
the  fact  that  the  consular  officers  are  often  remotely  located  from  the 
place  where  the  estate  is  situated. 

The  latter  consideration  is  entitled  to  much  weight  in  the 
practical  determination  of  the  question,  as  appears  from  the 
fact  that  one  consul  residing  at  Chicago  handles  13  states  am 
that  the  foreign  consuls  handling  the  upper  peninsula  of  Mich- 
igan reside  either  in  Duluth,  Minneapolis,  or  Chicago. 


MISCELLANEOUS  RULINGS.  425 

ELECTION— WHEN  EMPLOYE  SUBJECT  TO  LAW. 

We  have  examined  the  provisions  of  section  8  as  to  the  em- 
ploye being  subject  to  the  provisions  of  Act  No.  10  of  Public 
Acts  of  1912,  with  special  reference  to  the  thirty-day  provision 
in  subdivision  2  thereof. 

Our  conclusions  are  as  follows: 

That  the  acceptance  of  the  employer  is  a  first  requisite  to 
the  employe  coming  under  the  act.  In  addition  to  the  accept- 
ance by  the  employer  the  following  is  required  in  order  to 
bring  the  employe  under  the  provisions  of  the  act: 

(1)  That  employe  did  not  at  hiring  give  notice  in  writing  of  elec- 
tion to  to  be  subject  to  act;  or 

(2)  In   case  of  any  old  employe,  whose  contract  of  hiring  ante- 
dates the  employer's  acceptance,  such  employe  gives  notice  in  writ- 
ing of  election  to  be  subject  to  the  provisions  of  the  act;  or 

(3)  In  case  of  an  old  employe  as  above,  after  employer  has  accepted 
and  posted  notices,  continuing  to  work  without  expressing  his  elec- 
tion either  way  for  a  period  of  thirty  days  or  more. 

The  evident  intent  of  the  law  is  as  follows: 

(a)  Where  a  man  comes  to  a  factory  working  under  the 
act  with  notices  posted,  etc.,  seeks  and  secures  employment, 
walks  into  the  shop  and  sees  the  posters,  and  does  not  go  back 
to  the  office  and  sign  and  serve  a  notice  that  he  elects  not  to 
come  under  the  act,  is  deemed  to  have  accepted  it  and  ac- 
quiesced to  the  conditions  of  employment  in  the  institution 
where  he  goes  to  work. 

(b)  In  case  of  an  old  employe  working  in  a  shop,  and  while 
so  employed  notices  are  posted  announcing  that  the  employer 
has  accepted  the  law,  etc.,  if  the  foreman  comes  round  and 
passes  out  his  blank  acceptances  to  be  signed  by  the  men  who 
desire  to  come  under  it,  and  the  employe  signs  it  and  files  with 
the  employer  his  written  acceptance  of  the  law,  then  such  em- 
ploye is  subject  to  the  law,  and  becomes  subject  to  it  from  the 
time  he  signs  and  delivers  to  his  employer  such  acceptance. 

(c)  That  in  case  of  an  old  employe,  who  when  notices  are 
posted  in  the  shop  as  above,  continues  to  work  without  giving 


425  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

notice  that  he  will  be  subject  or  that  he  will  not  be  subject  to 
the  law,  and  so  continues  to  work  for  a  period  of  thirty  days, 
then  his  action  in  continuing  to  work  for  such  period  of  time 
is  equivalent  to  an  actual  acceptance,  and  he  is  deemed  sub- 
ject to  the  law.  But  if  he  is  injured  after  having  continued  to 
work  twenty  days  as  above,  then  we  think  he  would  retain  the 
right  to  decide  whether  to  make  claim  under  the  Common 
Law  or  under  the  Compensation  Law.  If  he  made  claim  un- 
der the  Common  Law  and  brought  suit,  the  employer  would 
retain  his  former  defenses,  the  same  as  if  the  employe  had 
made  his  election  not  to  come  under  the  act  before  the  time  of 
his  injury. 

PRACTICE   IN  ARBITRATION   CASES   WHERE   APPLI- 
CANT DOES  NOT  APPEAR  OR  IS  WITHOUT 
EVIDENCE. 

Section  8  of  Part  III  of  the  Compensation  Law  provides 
that  "The  committee  of  arbitration  shall  make  such  inquiries 
and  investigations  as  it  shall  deem  necessary,"  at  the  time  and 
place  set  for  arbitration.  The  failure  of  the  applicant  to  ap- 
pear or  produce  evidence  does  not  dispose  of  the  matter  or 
preclude  the  committee  from  calling  witnesses,  taking  proofs 
and  making  inquiry  and  investigation  as  to  the  merits  of  the 
claim.  In  such  case  the  proper  course  is  for  the  respondents 
to  produce  their  witnesses  and  make  a  full  showing  on  the 
merits  so  that  a  decision  of  the  case  on  the  merits  may  be  had. 
If  respondents  refuse  to  do  this  and  insist  upon  a  dismissal  of 
the  case,  the  same  may  be  reset  for  arbitration  at  a  later  date 
if  in  the  opinion  of  the  Board  such  course  is  proper. 


CLAIM  FOR  COMPENSATION— PHYSICAL  INCAPACITY 

TO  MAKE. 

In  the  case  of  Podkastelnea  vs.  Michigan  Central  Railroad 
Company  the  principal  defense  was  based  upon  the  failure  of 
the  applicant  to  make  claim  for  compensation  within  six 


MISCELLANEOUS  RULINGS.  427 

lonths  after  the  accident.  It  appeared  in  the  evidence  that 
Cor  several  weeks  after  the  accident  the  applicant  was  con- 
fined to  the  hospital,  most  of  the  time  being  in  bed  and  under 
the  care  of  doctors  and  nurses.  That  claim  was  made  within 
six  months  after  he  was  able  to  leave  the  hospital,  but  not 
within  six  months  after  the  occurrence  of  the  accident.  The 
clause  providing  for  the  six  months  limitation  is  Section  15, 
Part  II  of  the  Act,  which  contains  the  following  exception : 

"•in  the  event  of  his  physical  or  mental  incapacity,  within  six 
months  after  *  *  the  removal  of  such  physical  or  mental  incapacity." 

The  incapacity  referred  to  is  of  two  kinds  viz.,  "physical" 
or  "mental."  A  proper  construction  of  the  section  requires 
that  both  of  these  words  be  given  effect,  and  by  giving  effect 
to  the  phrase  "physical  incapacity,"  it  must  be  held  that  the 
six  months  period  did  not  commence  to  run  until  the  appli- 
cant was  physically  able  to  make  out  and  deliver  the  claim  to 
respondent.  This  brings  the  claim  within  the  six  month  limi- 
itation  and  entitles  the  applicant  to  compensation. 

FOREIGN  DEPENDENCY— PAYMENT  OR  TRANSMIS- 
SION OF  MONEY  THROUGH  CONSULS. 

The  matter  of  the  payment  and  transmission  of  money  to 
foreign  dependents  and  the  function  to  be  performed  by  the 
consuls  in  relation  thereto  was  found  to  be  an  important  prob- 
lem, and  for  the  purpose  of  reaching  a  reasonable  and  satis- 
factory basis  for  the  handling  of  matters  of  this  kind,  invi- 
tation was  extended  to  all  foreign  consuls  having  jurisdiction 
in  Michigan  to  meet  with  the  Board  for  a  full  discussion  of 
the  entire  subject.  A  largely  attended  meeting  was  had  and 
after  thorough  consideration  and  discussion  of  the  matter  the 
following  plan  was  approved: 

(1)  That  in  cases  where  a  duly  authenticated  power  of  attorney 
to  the  consul  is  filed,  that  payment  in  the  first  instance  be  made  to  the 
consul,  taking  his  consular  receipt  therefor  duly  authenticated  by  his 
consular  seal  attached  thereto,  and  to  file  the  same  with  the  Indus- 
trial accident  Board. 


428  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

(2)  The   consul   thereupon    to    transmit   the   money   through   the 
usual  governmental  channels  the  distribution  and  payment  to  be  made 
to  the  dependents  by  the  local  county  courts  where  the  identity  of  the 
persons  will  be  proven  to  the  Court  and  certified  by  the  judge,  and  the 
receipts  signed  by  the  dependents  procured  through  such  courts  and 
properly  certified  and  authenticated  through  the  consulate  to  be  filed 
with  the  Board,  the  latter  receipt  to  be  the  final  receipt  accepted  in 
settlement  of  the  matter. 

(3)  That  in  case  of  the  failure  of  any  consul  to  procure  and  file 
the   final    receipts   aforesaid   the   Board   will   direct  that   no   further 
payments  of  money  be  made  through  him  in  any  cases. 

(4)  That  the  above  applies  only  in  cases  where  duly  authenticated 
power  of  attorney  is  given  to  the  consul.     In  cases  where  the  parties 
in  interest  give  power  of  attorney  to  somebody  other  than  the  consul, 
we  are  of  the  opinion  that  we  should  recognize  the  party  so  chosen, 
using  reasonable  precaution  in  seeing  that  the  interests  of  the  per- 
sons dependent  are  protected.     It  was  conceded  by  all  of  the  consuls 
that  the  dependent  had  the  right  to  choose  the  person  who  would 
represent  her  and  that  ordinarily  the  Board  would  have  no  right  to 
disregard  her  choice. 

(5)  That  in  cases  where  two  different  persons  have  filed  powers  of 
attorney,  both  claiming  the  right  to  recognition,  the  matter  is  easily 
adjusted  by  having  the  dependent  choose  which  of  the  two  will  be 
retained  as  her  representative.    This  can  be  done  by  revoking  one  of 
the  powers  of  attorney  and  leaving  the  other  one  in  force.  It  is  not  the 
function  of  the  Board  to  decide  between  rival  claims  of  this  kind,  but 
merely  to  put  the  question  up  to  the  dependents  to  make  such  choice 
by  executing  and  filing  a  proper  revocation  of  one  of  the  powers  of 
attorney. 


FOREIGN  DEPENDENTS— LETTERS  ROGATORY  AND 
PROOFS,  PRACTICE  IN. 

The  following  practice  in  the  above  cases  is  approved  and 
established  by  the  Board: 

(1)  In  case  it  is  necessary  to  take  the  testimony  of  witnesses  in 
a  foreign  country,  the  person  desiring  such  testimony  shall  apply 
to  the  Board  for  the  issuance  of  letters  rogatory  by  petition  to  which 
shall  be  attached  the  interrogatories  which  he  desires  to  have  pro- 
pounded to  the  witnesses  whose  testimony  is  to  be  taken;  he  will  also 
attach  thereto  a  copy  of  the  order  proposed  in  the  case,  and  shall  serve 
copies  of  all  of  said  papers  upon  the  opposite  party  or  his  attorney, 
the  time  for  such  service  to  be  the  same  as  provided  in  the  Circuit 


MISCELLANEOUS  RULINGS. 


42,) 


>urt  rules  of  Michigan.  A  notice  should  also  be  attached  to  the 
ipers  so  served  stating  the  time  when  the  same  would  be  presented 
to  the  Board  for  issuance,  and  further  stating  that  the  opposite  party 
may  propose  and  submit  at  the  time  aforesaid  cross-interrogatories  to 
be  attached  to  said  letters,  and  propounded  to  the  witnesses  whose 
testimony  is  to  be  taken. 

(2)  That  at  the  time  fixed  in  said  notice  such  original  petition  with 
proof  of  service  attached  thereto  may  be  presented  to  the  Board,  and 
also    any    proposed    cross-interrogatories,    or    objections    or    motions 
whether  made  orally  or  in  writing,  and  the  same  will  be  passed  upon 
by  the  Board. 

(3)  The  Board   will   issue  as  of  course   such  letters  in  all  cases 
except  where  substantial  reasons  are  affirmatively  shown  against  said 
issuance,  the  same  to  be  authenticated  by  the  Secretary  of  the  Board 
signing  the  same  and  attaching  the  seal  of  the  Board  thereto.     That 
in  such  cases  the  cross-interrogatories  proposed  by  the  opposite  party 
will  be  attached  to  the  letters  as  of  course  except  where  it  is  made  to 
appear  that  they  are  impertinent  or  irrelevant. 

This  gives  the  opposite  party  an  opportunity  to  be  heard 
and  to  submit  cross-interrogatories  to  be  propounded,  and 
while  under  the  notice  to  be  served  such  opposite  party  need 
not  appear,  still  it  affords  him  full  opportunity  to  so  appear 
and  be  heard. 


FOREIGN   DEPENDENTS— POWER   OF    ATTORNEY- 
HOW  EXECUTED. 


In  all  cases  of  foreign  dependency,  the  original  Power  of 
Attorney  should  be  made  in  the  language  and  upon  the  forms 
of  the  country  where  such  dependents  reside.  It  should  be 
acknowledged  before  the  proper  local  officer,  having  authority 
to  acknowledge  and  certify  such  papers,  and  should  be  authen- 
ticated by  the  seal  of  the  American  Consul.  Accompanying 
same  and  attached  thereto  should  be  a  translation  of  said 
Power  of  Attorney  into  English,  and  attached  also  should  be 
an  affidavit  made  by  the  translator,  (who  should  be  a  person 
within  reach  and  responsible),  stating  that  the  translation  an- 
nexed was  made  by  him  and  that  same  was  carefully  and  cor- 
rectly made,  and  that  it  is  a  true  and  accurate  translation  of 


430  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

the  Power  of  Attorney.  A  proper  way  to  designate  these 
would  be  to  state  in  the  affidavit  that  the  original  Power  of 
Attorney  is  attached  hereto  and  marked  "Exhibit  A,"  and 
that  the  translation  is  attached  hereto  and  marked  "Exhibit 
B."  In  all  cases  where  the  Power  of  Attorney  does  not  com- 
ply with  this  rule  it  should  be  returned  for  correction,  or  at 
least  called  to  the  attention  of  the  Board  before  further  action 
is  had  on  same.  Generally  the  Board  will  not  accept  or  act 
upon  a  Power  of  Attorney  executed  in  a  foreign  country  which 
is  written  in  English,  or  upon  blanks  printed  in  English. 


DEATH— AFTER  APPROVAL  OF  AGREEMENT  IN 
REGARD  TO  COMPENSATION. 

In  cases  where  an  agreement  in  regard  to  compensation  is 
made  and  approved  by  the  Board,  and  afterwards  death  of  the 
injured  person  follows  resulting  from  the  injury,  a  new  right 
of  action  arises  from  the  death  in  favor  of  the  widow  or  others 
who  may  be  dependent.  This  cause  of  action  did  not  exist 
until  the  death,  and  arose  from  the  death,  and  is  in  no  way 
affected  by  any  agreement  or  action  of  the  deceased,  except 
that  the  amount  of  the  payments  of  compensation  that  he  act- 
ually received  prior  to  his  death  are  to  be  deducted  from  the 
300  weeks'  compensation  payable  in  death  cases. 

In  disputed  cases  where  it  is  contended  that  the  death  was 
not  the  result  of  the  injury,  or  where  other  defenses  are  in- 
terposed, the  widow  or  the  dependents  are  entitled  to  make 
application  for  arbitration,  as  the  case  is  an  original  one  and 
not  affected  by  the  agreement  in  regard  to  compensation  made 
bv  the  deceased  before  his  death. 


LATE   DECISIONS  BY  THE   SUPREME 
COURT1— JUNE  AND  JULY,  1916. 

SUPREME  COURT. 

ASAPH  HILLS, 

Claimant  and  Appellee, 
vs. 
THE  OVAL  WOOD  DISH  COMPANY 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 

Respondents  and  Appellants. 

LATENT  DISEASE — RETARDING  RECOVERY. 

Claimant  while  employed  in  the  saw  mill  of  respondent  received  an 
injury  to  his  right  arm  by  which  the  flesh  was  bruised  and  the 
front  part  of  the  arm  denuded  of  its  skin,  exposing  the  blood  ves- 
sels and  muscles  underneath.  The  injury  did  not  heal  properly 
and  claimant  continued  to  remain  in  a  disabled  condition. 
Respondents  filed  petition  to  be  relieved  from  making  further  pay- 
ments on  the  ground  that  claimant's  continued  disability  was  due 
to  a  disease  in  the  system. 

HELD:  That  the  Compensation  Law  does  not  make  exception  for 
cases  of  injured  men  whose  health  is  impaired  or  below  the  nor- 
mal standard.  That  it  does  not  exclude  from  its  benefits  the  man 
who  carries  in  his  body  a  latent  disease  which,  in  case  of  injury, 
may  retard  or  prevent  recovery. 

Certiorari  to  the  Industrial  Accident  Board  to  review  the 
order  denying  respondents'  petition  to  be  relieved  from  pay- 
ing further  compensation.  Affirmed. 


JThe  opinions  under  the  above  heading  were  handed  down  by  the 
Supreme  Court  after  the  type  was  set  and  printing  for  this  volume 
nearly  completed. 


432  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Robert  R.  Gale,  of  Muskegon,  for  claimant. 

Beaumont,  Smith  &  Harris,  of  Detroit,  for  respondents. 

PERSON,  J.  While  claimant  was  employed  in  the  sawmill 
of  the  Oval  Wood  Dish  Company,  at  Traverse  City,  he  met 
with  an  accident  by  which  his  right  arm  was  injured  above 
the  elbow.  As  found  by  the  Industrial  Accident  Board,  "the 
flesh  was  bruised  and  torn,  and  the  front  part  of  the  arm  de- 
nuded of  its  skin,  exposing  the  blood-vessels  and  muscles 
underneath."  An  agreement  for  compensation  was  reached 
and  approved,  and  payments  were  made  in  compliance  there- 
with for  a  period  of  nineteen  weeks.  At  the  end  of  that 
period  the  payments  were  discontinued,  and  presently  the 
respondents  filed  with  the  Industrial  Accident  Board  a  peti- 
tion asking  that  they  be  relieved  from  making  further 
payments  upon  the  ground  that  claimants'  continued  disa- 
bility was  due  to  a  venereal  disease,  viz.,  syphilis,  which  re- 
tarded the  healing  of  the  injury.  The  claimant  filed  an  an- 
swer to  this  petition  in  which  he  denied  that  he  had  ever  con- 
tracted such  disease,  or  been  afflicted  with  it.  And  we  do  not 
understand  it  to  be  claimed  that  he  was  suffering  from 
syphilis  in  any  active  stage.  As  found  by  the  Industrial  Ac- 
cident Board: 

"The  evidence  in  this  case  does  not  suggest  any  active  disease  in 
applicant's  body  prior  to  the  injury,  nor  does  it  disclose  any  sub- 
stantial evidence  of  the  existence  of  a  bodily  disease  except  the  fact 
that  the  wound  did  not  readily  heal  and  that  symptoms  led  the  phys- 
icians to  suspect  syphilis  in  the  blood,  together  with  some  evidence 
that  a  Wasserman  test  of  the  blood  was  had  and  that  such  test 
showed  the  presence  of  syphilis.  In  this  connection  it  should  be 
said  that  the  essential  part  of  the  evidence  as  to  the  Wasserman  test 
is  hearsay,  as  it  consisted  merely  of  an  unsworn  report  sent  by  mail 
from  the  Lincoln-Gardner  Laboratories  in  Chicago,  where  a  sample  of 
applicant's  blood  had  been  sent  to  be  tested." 

Under  this  state  of  facts  it  is  urged  that  an  order  should 
have  been  made  by  the  Board  relieving  the  respondents  from 
payment  of  further  compensation,  and  the  argument  in  sup- 


HILLS  vs.  THE  OVAL  WOOD  DISH  COMPANY.  433 

port  of  such  contention  is  stated  in  the  brief  of  their  counsel, 
as  follows: 

"The  Compensation  Act  does  not  assume  to  pay  for  any  period  of 
disability  beyond  that  which  is  traceable  to  the  injury,  either  di- 
rectly or  indirectly.  The  case  is  to  be  distinguished  from  the  cases 
where  the  accident  has  aggravated  or  accelerated  a  pre-existing  dis- 
ease. It  has  been  held,  under  the  English  Act,  that  where  the  in- 
jury aggravates  a  disease,  the  increased  impetus  given  to  that  disease 
being  a  result  of  the  injury,  the  disability  caused  thereby  must  be 
compensated  for.  But  upon  the  record  in  this  case  there  is  no  ques- 
tion of  the  acceleration  of  the  syphilitic  condition.  Syphilis  from  its 
very  nature  is  not  accelerated  by  a  cut  or  a  bruise  but  its  presence  on 
the  other  hand  retards  the  healing  of  the  cut.  We  may  assume  that 
upon  an  accident  the  employer  is  bound  to  compensate  for  the  re- 
sults of  the  injury  and  must  be  assumed  to  have  accepted  the  em- 
ployee in  whom  is  a  constitutional  disease,  the  ravages  of  which 
are  increased  by  the  injury.  But  this  does  not  go  to  the  extent  of 
saying  that  when  the  disease  prevents  the  healing  of  the  injury,  or 
in  other  words  this  new  cause  supervenes  the  injury  as  a  cause  of 
the  disability,  the  industry  that  contracted  only  to  pay  for  the  dis- 
ability resulting  from  injury  should  pay  this  additional  compensa- 
tion. 

"We  think  it  is  clear  without  further  argument  that  if  the  line  can 
be  drawn  between  the  period  of  disability  caused  by  the  accident  and 
that  caused  by  the  disease,  no  question  would  be  made  but  that  com- 
pensation would  only  extend  over  the  period  caused  by  the  accident. 

"But  even  if  this  period  cannot  be  absolutely  segregated,  still  we 
contend  that  the  proper  rule  that  should  be  applied  is  that  com- 
pensation 'should  be  allowed  only  for  the  period  for  which  the  injury 
complained  of  would  disable  a  person  of  average  condition  not  suf- 
fering' from  the  disease." 

The  Board  made  no  definite  and  specific  finding  as  to 
whether,  as  a  matter  of  fact,  the  period  of  claimant's  disabil- 
ity was  or  was  not  being  extended  by  the  presence  and  action 
of  the  disease,  but  declined  to  relieve  the  respondent  from 
further  payments,  for  the  following  reason  stated  in  the 
written  opinion  which  it  filed: 

"The  legal  question  presented  by  the  petition  is  an  important  one. 

If  the  correct  rule  for  determining  the  length  of  time  compensation 

for  disability  should   be  paid  in  case  of  an  injury  of  this   general 

character  is  found  to  be  the  one  contended  for  by  respondents,  the 

55 


434  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

result  will  be  far-reaching.  The  question  then  to  be  determined  in 
cases  of  continuing  disability  would  be  whether  the  injury  should 
have  healed,  or  whether  it  should  have  healed  more  quickly  than  it 
did,  instead  of  the  actual  resulting  disability.  Instead  of  the  plain 
question  of  fact  as  to  the  nature  and  duration  of  the  disability  which 
the  injured  man  actually  suffered,  it  would  present  for  decision  the 
question  as  to  how  much  he  should  have  suffered,  and  how  soon  he 
should  have  recovered,  upon  the  theory  that  only  a  part  of  the  dis- 
ability was  due  to  the  injury  and  the  remaining  part  due  to  disea'se. 
In  the  opinion  of  the  Board,  the  respondents'  contention  must  fail. 
The  Compensation  Law  does  not  fix  any  standard  of  physical  health, 
nor  does  it  make  any  exceptions  for  cases  of  injuries  to  men  whose 
health  is  impaired,  or  below  the  normal  standard.  Neither  does  it 
except  from  the  benefits  of  the  law  the  man  who  carries  in  his  body  a 
latent  disease  which,  in  case  of  injury,  may  retard  or  prevent  re- 
covery. The  la*w  by  its  expressed  terms  applies  to  every  man  who 
suffers  disability  from  injury.  It  does  not  exclude  the  weak  nor 
the  less  fortunate  physically,  but  was  intended  for  the  working  men 
of  the  state  generally,  taken  as  they  are. 

"The  authorities  seem  to  be  strongly  against  respondent's  conten- 
tion: 

Boyd's  Workmen's  Compensation,  Sec.  463; 

Bradbury's  Workmen's  Compensation,   (2d  Ed.)   385  and  386; 

Willoughby  vs.  Great  Western  Railway  Company,  6  W.  C.  C.  28 ; 
Ystradowen  Colliery  vs.  Griffiths,  2  B.  W.  C.  C.  359. 

"This  is  not  a  case  where  the  workman  was  suffering  from  some 
active  disease  or  injury  at  the  time  of  the  accident,  as  applicant  was 
apparently  in  good  health  in  every  respect  up  to  the  time  he  re- 
ceived the  injury.  The  difficulties  of  proving  the  reasonable  duration 
of  disability  which  should  result  from  an  accident  is  discussed  to 
some  extent  in  the  English  cases  above  cited,  pointing  out  the  fact 
that  Ward  vs.  London  &  Northwestern  Railway  Company,  3  W.  C.  C. 
193,  which  attempted  to  make  such  determination,  is  no  longer  re- 
garded as  authority.  They  further  suggest  the  danger  of  attempt- 
ing to  fix  the  duration  of  disability  on  medical  prognosis  and  opinion 
evidence,  when  it  is  conceded  by  the  medical  profession  itself  that  it 
has  yet  much  to  learn  in  such  matters." 

We  agree  with  the  Industrial  Accident  Board  that,  under 
the  circumstances  of  this  case,  the  Act  does  not  contemplate 
any  such  apportionment  of  the  period  of  disability  as  respond- 
ents ask  for.  Assuming  that  such  disability  is  being  prolong- 


BAYER  vs.  BAYER,  435 

ed  by  the  disease,  there  is  yet  no  point  at  which  the  conse- 
quences of  the  injury  cease  to  operate.  It  is  the  theory  of 
respondents,  not  that  the  consequences  of  the  injury  cease, 
but  that  they  are  prolonged  and  extended.  There  is  no  part 
of  the  period  of  disability  that  would  have  happened,  or 
would  have  continued,  except  for  the  injury.  The  conse- 
quences of  the  injury  extend  through  the  entire  period.  And 
so  long  as  the  incapacity  of  the  employe  for  work  results  from 
the  injury  it  comes  within  the  statute,  even  when  prolonged 
by  pre-existing  disease. 
The  order  of  the  Industrial  Accident  Board  is  affirmed. 


SUPREME  COURT. 

MARY  BAYER, 

Claimant  and  Appellee, 
vs. 
CHARLES  F.  BAYER, 

and 

UNION  CASUALTY  INSURANCE  COMPANY, 
Respondents  and  Appellants. 

INSURANCE  CARRIES — LIMITATION  OF  POLICY. 

Where  the  policy  limits  the  insurer's  liability  to  injuries  of  em- 
ployes of  the  assured  occurring  while  engaged  in  certain  specified 
labors,  the  insurer  cannot  be  held  liable  for  an  injury  to  an  em- 
ploye while  engaged  in  undertakings  which  are  clearly  outside 
those  specified  in  the  policy. 


Certiorari  to  the  Industrial  Accident  Board  to  review  an 
award  made  against  both  respondents.    Modified  as  to  insurer. 


436  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Edward  S.  Qrece,  of  Detroit,  for  claimant. 
Walters  d  Hicks,  of  Detroit,  for  respondents. 

There  was  testimony  to  support  the  finding  that  claimant's 
decedent  and  husband  was  employed  by  respondent  Charles 
F.  Bayer  and  upon  his  business  when  he  was  killed.  Whether 
the  risk  was  one  assumed  by  respondent  Union  Casualty  Com- 
pany is  the  debatable  question. 

Eespondent  Union  Casualty  Company  issued  to  respondent 
Charles  F.  Bayer  its  policy  of  insurance.  Upon  the  policy  is 
a  rider  which  reads: 

"The  policy  to  which  this  endorsement  is  attached  is  extend- 
ed to  cover,  and  the  undersigned  company  does  hereby  agree  to 
assume  and  perform  each  and  every  obligation  imposed  upon  the 
assured  by  Act  No.  10,  Public  Acts,  Extra  "Session,  1912,  State  of 
Michigan,  and  the  election  of  the  assured  thereunder  that  is  required 
of  the  assured  to  do  and  perform  on  account  of  personal  injuries  (in- 
cluding death  resulting  therefrom),  sustained  by  any  employe  or  em- 
ployes of  the  assured  while  this  policy  is  in  force,  and  arising  out  of 
and  in. the  course  of  his  or  their  employment  by  said  assured,  in 
the  operation  of  and  in  connection  with  the  business  herein  stated." 

The  business  of  the  insured  is  stated  in  the  policy  as  fol- 
lows: 

"Place  where  the  work  is  to  be  done:  State  of  Michigan.  Kind  of 
work  to  be  done:  Contractors,  buildings  wooden,  or  frame  private 
residences,  flats,  apartment,  flats  with  stores  underneath,  one  story 
stores  and  stores  with  offices  above,  private  stables  and  private  gar- 
ages, exclusively,  and  buildings  not  mercantile  or  factory;  all  not  ex- 
ceeding three  stories  and  basement  in  height,  including  jobbing  work 
connected  therewith;  no  blasting.  This  classification  does  not  in- 
clude the  erection  of  churches,  theatres,  or  buildings  intended  for 
city  and  county  or  municipal  use,  such  as  court  houses,  city  halls  or 
capitol  buildings." 

The  policy  is  not  returned,  and  we  have  no  further  informa- 
tion about  its  terms.  It  is  contended  that  claimant's  deced- 
ent was  not  killed  while  performing  any  duty  in  connection 
with  the  said  business.  The  facts  may  be  briefly  related. 

Claimant's  decedent  was  the  father  of  Charles  F.  Bayer, 


BAYER  vs.  BAYER. 


437 


was  employed  by  him  and  by  no  one  else.  Sometimes  he  was 
employed  in  and  about  the  business  described  in  the  policy 
of  insurance.  Charles  F.  Bayer  owned  a  horse  and  wagon 
and  this,  his  father  driving  the  horse,  was  sometimes  employed 
in  the  said  business.  Charles  F.  Bayer  had  a  brother,  Wil- 
liam, a  painter.  This  brother  was  not  his  partner  nor,  ex- 
cept upon  contract  relations,  employed  by  Charles  F.  Bayer. 
He  did  business  upon  his  own  account,  working  for  others  as 
well  as  for  his  brother.  They  had  separate  shops.  By  an 
arrangement  between  the  brothers,  William  was  to  pay  one- 
half  the  expense  of  feeding  the  horse  belonging  to  Charles, 
and  Charles,  in  consideration  thereof,  was  to  move,  with  the 
horse  and  wagon,  material  and  apparatus  of  William,  used 
in  his  business,  from  place  to  place,  as  required  by  William. 
From  time  to  time,  depending  upon  the  jobs  secured  by  Wil- 
liam, and  upon  William's  request,  the  horse  and  wagon  and 
claimant's  decedent  were  so  employed.  A  job  of  painting  had 
been  completed  by  William  at  Lakeside.  Charles  had  no  in- 
terest in  it;  had  not  constructed  or  repaired  the  building, 
but  upon  request  of  William  sent  his  father  and  the  horse 
and  wagon  to  Lakeside  to  draw  into  Detroit,  to  his  brother's 
shop,  the  ladders,  etc.,  belonging  to  William.  It  was  while 
returning  to  Detroit  with  William's  material  and  apparatus 
upon  the  wagon  that  claimant's  decedent  was  killed,  upon  the 
tracks  of  an  electric  railroad,  by  a  car. 

The  chairman  of  the  arbitration  committee  said,  in  the 
course  of  the  hearing: 

"It  doesn't  matter  whether  he  was  hauling  for  a  grocery  store,  as 
far  as  this  case  is  concerned.  If  he  was  under  this  man's  control  and 
selected  by  him  and  paid  by  him,  that  is  the  particular  point." 

Two  of  the  arbitrators  awarded  claimant  six  dollars  a 
week  for  three  hundred  weeks.  The  third  arbitrator  refused 
to  concur.  Upon  appeal,  the  Industrial  Accident  Board  modi- 
fied the  action  of  the  arbitrators  and  awarded  $5.50  per  week 
for  a  like  period. 


438  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

OSTRANDER,  J.     (After  stating  the  facts)  : 

It  is  obvious  that  the  policy  of  insurance,  or  of  indemnity, 
is  not  an  undertaking  of  the  insurer  to  respond  in  all  cases 
for  injuries  to,  or  death  of,  any  employe  of  the  assured,  in 
any  employment.  The  purpose  plainly  is  to  limit  liability  to 
cases  of  employment  "in  the  operation  of  and  in  connection 
with  the  business  herein  stated."  If  there  is  any  connection 
between  the  carpenter  contracting  business  and  the  business 
of  draying  or  hauling  personal  property  for  third  persons, 
neither  the  property  nor  its  owner  being  in  any  way  connect- 
ed with  the  business,  it  is  not  pointed  out  and  I  am  unable 
to  discover  it.  Whether  the  assured  hauled  the  property  of 
his  brother  for  a  consideration,  (as  he  did),  or  gratuitously, 
his  agent  and  employe  engaged  in  the  hauling  was  not  em- 
ployed by  the  assured  in  the  operation  of,  or  in  connection 
with,  the  business  stated  in  the  policy. 

Counsel  for  claimant  makes  an  argument  based  in  part 
upon  the  assumption,  and  assertion,  that  the  statute,  Act  No. 
10,  Public  Acts,  Extra  Session,  1912,  does  not  contain  the 
words  "arising  out  of  and  in  the  course  of  his  employment," 
but,  unlike  the  statutes  of  many  states,  omits  the  words  "aris- 
ing out  of,"  and  includes  only  the  words  "in  the  course  of  his 
employment."  This  assumption  is  unwarranted.  Part  2,  sec- 
tion 1. 

It  is  not  contended  that  the  contract  of  the  insurance  com- 
pany is  not  controlling  according  to  its  terms.  It  is  conceiv- 
able that  a  man  may  be  engaged  in  more  than  one  business, 
and  as  to  one  or  more  may  elect  to  come  under  the  terms  of 
the  act,  and  as  to  another  or  others  elect  not  to  be  governed 
by  the  act.  The  declaration  of  the  assured  employer  is  not 
before  us. 

Upon  this  record,  and  considering  only  the  points  pre- 
sented, it  must  be  held  that  the  order  of  the  Industrial  Ac- 
cident Board,  as  affecting  the  respondent  insurance  company, 
is  invalid.  It  is  vacated. 


BEAUDRY  vs.  WATKINS  AND  RADCLIFFE.  439 


SUPREME  COURT. 

CHARLES  E.  BEAUDRY, 

Applicant  and  Appellee, 
vs. 
WILLIAM  H.  WATKINS  and  BYRON  D.  RADCLIFFE, 

Co-partners  doing  business  as 
WATKINS  &  RADCLIFFE, 

Respondents  and  Appellants. 

INTENTIONAL  AND  WILFUL  MISCONDUCT. 

Gordon  Beaudry,  15  years  of  age,  was  employed  as  a  delivery  boy 
by  respondents  and  was  furnished  a  bicycle  with  which  to  do 
his  work.  While  engaged  in  his  work  and  riding  on  a  busy 
street  in  the  city  of  Detroit,  he  took  hold  of  the  rear  end  of  a 
motor  truck  which  was  proceeding  in  the  same  direction.  The 
truck  turned  suddenly  to  the  right  throwing  the  boy  down  on 
the  pavement.  He  was  run  over  and  killed  by  another  truck 
which  was  following  close  behind  him. 

HELD:  1.  That  the  accident  arose  out  of  and  in  the  course  of 
his  employment. 

2.  That  his  action  in  taking  hold  of  the  truck  did  not  consti- 
tute intentional  and  wilful  misconduct  within  the  meaning  of  the 
law. 


Certiorari  to  the  Industrial  Accident  Board  to  review  an 
award  in  favor  of  applicant.    Affirmed. 


Francis  HcGann,  of  Detroit,  for  applicant. 
Ivin  E.  Kerr,  of  Detroit,  for  respondents. 

MOORE,  J.  The  facts  are  not  complicated.  On  April  29th, 
1914,  and  prior  thereto,  Gordon  Beaudry,  nearly  fifteen  years 
of  age,  was  employed  by  Watkins  &  Radcliffe  as  a  delivery 
boy  and  he  was  furnished  a  bicycle  with  which  to  do  his 
work.  On  that  date  he  was  to  make  a  delivery  on  Cass  avenue. 


440  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Permission  was  given  him  to  get  his  luncheon  at  home,  No. 
997  Theodore  street,  and  he  was  then  to  call  for  a  package 
and  return  to  the  store. 

One  of  his  employers  testified  he  "asked  my  permission  to  go  home 
to  lunch  from  Theodore  street,  or  whatever  the  call  back  might  be. 
I  reluctantly  gave  him  permission  to  make  that  trip  that  way  on  the 
ground  that  he  would  hurry  up  and  come  back.  I  thin*  it  was  about 
twenty  minutes  to  eleven  when  I  gave  him  this  order  and  he  argued 
that  he  could  go  to  Case  avenue  first,  that  he  could  go  and  make  the 
pick  up  and  get  his  lunch  and  get  back  early. 

"Q.  Making  this  pick  up  and  making  this  delivery  were  in  the 
course  of  his  employment?  A.  Oh  yes. 

"Q.  He  was  employed  to  do  this  very  thing  Mr.  Watkins?  A.  He 
was." 

The  boy  called  at  his  home  at  about  11 :30  o'clock  and  took 
ten  minutes  for  lunch.  He  told  his  mother  he  had  another 
delivery  to  make  and  was  in  a  hurry.  As  he  was  proceeding 
in  a  westerly  direction  on  Canfield  Avenue  East,  he  caught 
on  the  right  rear  end  of  a  motor  truck,  proceeding  in  the 
same  direction.  This  truck  overtook  and  passed  another  truck 
also  proceeding  in  a  westerly  direction.  The  boy  was  still 
hanging  on  the  right  rear  end  of  the  truck  which  turned  sud- 
denly to  the  right.  As  a  result  of  the  truck  making  this  sud- 
den turn  the  boy  was  thrown  to  the  pavement  a  few  feet  in 
advance  of  the  rear  truck  and  before  the  driver  in  charge 
could  stop,  the  left  front  wheel  passed  over  the  boy's  body. 
Death  resulted  soon.  Deceased  at  the  time  of  his  death  was 
earning  six  dollars  a  week  which  he  gave  to  his  mother  each 
week  for  use  in  the  family.  Deceased  was  an  expert  bicyclist. 

We  quote  from  the  brief : 

"It  is  the  claim  of  respondent: 

1.  Gordon    Beaudry,    deceased    did    not   receive    a   personal   injury 
arising  out  of  and  in  the  course  of  his  employment. 

2.  He  was  injured  by  reason  of  his  intentional  and  wilful  miscon- 
duct." 

Sections  1  and  2,  Part  II  of  Act  No.  10  of  the  Public  Acts 


BEAUDRY  vs.  WATKINS  AND  RADCLIFFE.  441 

of  the  Special  Session  of  1912  are  quoted.  Under  the  first 
grouping  it  is  argued,  we  again  quote: 

"After  it  is  shown  that  the  accident  happened  within  the  time  dur- 
ing which  he  is  employed,  and  at  the  place  where  he  may  reasonably 
be  during  that  time,  that  is  within  the  period  and  the  scope  of  the 
employment,  the  workman  must  also  know,  that  it  was  a  risk  inci- 
dent to  the  employment;  that  it  arose  because  of  something  he  was 
doing  in  the  course  of  his  employment,  or  because  he  was  exposed 
by  reason  of  the  peculiar  nature  of  his  employment  to  the  partic- 
ular hazard  which  caused  the  injury." 

and  that  as  the  accident  happened  in  the  instant  case  because 
of  decedent  taking  hold  of  the  truck,  there  could  be  no  lia- 
bility. 

Counsel  cite  many  authorities  which  it  is  claimed  support 
his  contention. 

Under  the  second  heading  it  is  argued: 

"If  the  Court  should  hold  that  in  order  to  constitute  intentional  and 
wilful  misconduct,  it  should  appear  that  the  workman  intended  or 
expected  to  injure  himself,  it  would  be  putting  interpolating  into  the 
statute  a  limitation  upon  the  clause  which  cannot  be  gathered  from 
a  plain  and  obvious  meaning  of  the  word." 

The  authorities  cited  are  chiefly  those  of  foreign  jurisdic- 
tions. This  court  had  occasion  to  consider  the  language  used 
in  sections  1  and  2  of  Part  II  of  the  Act  in  Clem  v.  Motor 
Co.,  178  Mich.  340,  and  in  Rayrver  vs.  Furniture  Co.,  180  Id. 
168.  A  construction  of  section  2  was  involved  in  Oignac  vs. 
Studebakcr  Corporation,  22  D.  L.  N.  587.  While  the  instant 
case  is  not  on  all  fours  with  any  one  of  those  cases  we  think 
it  must  be  said  that  the  reasoning  used  in  deciding  them  justi- 
fied the  ruling  of  the  Industrial  Accident  Board. 

The  judgment  is  affirmed  with  costs. 

Stone,  C.  J.,  Kuhn  and  Person,  JJ.  concurred  with  Moore, 
J. 

OSTRANDER,  J.    In  my  opinion  the  risk  assumed  by  the  boy, 


442  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

though  the  cause  of  the  injury  was  not  a  risk  incident  to  his 
employment. 

Steere  and  Brooke,  JJ.  concurred  with  Ostrander,  J. 


SUPREME  COURT. 

JAMES  BRUCE, 

Claimant  and  Appellee, 
vs. 
TAYLOR  &  MALISKEY, 

and 

FIDELITY  &  DEPOSIT  COMPANY  OF  MARYLAND, 
Respondents  and  Appellants. 

DURATION  OF  DISABILITY — INJURY  TO  FOOT. 

The  claimant  received  an  injury  to  his  right  leg  below  the  knee 
by  which  he  was  disabled  from  working.  Respondents  paid  com- 
pensation for  124  weeks  and  tendered  payment  for  one  addi- 
tional week  but  demanded  that  claimant  sign  a  settlement  re- 
ceipt closing  the  case.  He  refused  and  respondents  petitioned 
the  Board  to  be  relieved  from  making  further  payments. 

HELD:  That  under  the  facts,  claimant  is  not  limited  to  the 
amount  of  compensation  specified  for  the  loss  of  a  foot,  but  is 
entitled  to  compensation  during  the  time  that  his  disability  in 
fact  continues,  subject  to  the  limitations  in  the  statute. 


Certiorari  to  the  Industrial  Accident  Board  to  review  an 
order  denying  respondents'  petition  to  be  relieved  from  mak- 
ing further  payments.  Affirmed. 

Lee  &  Parker,  of  Flint,  for  Claimant. 


BRUCE    vs.    TAYLOR    AND    MALISKEY. 


443 


Shields  &  Silsbee,  of  Lansing,  Austin   J.    Spalding,  of  De- 
troit, of  counsel,  for  respondents. 


Claimant  was  injured,  his  right  ankle  being  broken.  The 
defendant  insurance  company  entered  into  an  agreement  with 
him  to  pay  him  compensation  at  the  rate  of  $6.75  per  week 
during  the  period  of  disability,  the  agreement  being  subject 
to  the  terms  of  the  Compensation  Act.  Claimant  was  paid 
for  124  weeks,  and  pay  for  an  additional  week  was  tendered 
and  a  receipt  in  full  demanded.  Claimant  refused  to  give  a 
receipt  and  the  company  applied  to  the  Industrial  Accident 
Board  to  be  relieved  from  making  payments  beyond  the  period 
of  125  weeks. 

By  the  terms  of  the  statute  the  period  of  disability  for  loss 
of  a  foot  is  deemed  to  be  125  weeks. 

Claimant  testified  at  the  hearing  in  part  as  follows: 

"I  am  not  able  to  follow  any  work  such  as  I  had  been  following, 
that  of  a  common  laborer,  and  there  is  no  work  that  I  have  been 
able  to  find  at  which  I  can  earn  a  livelihood.  My  leg  pains  me  all 
the  time.  I  am  able  to  stand  on  it  by  using  my  cane,  and:  taking  the 
weight  off  my  foot,  but  when  I  put  the  leg  on  the  ground,  and  try 
to  stand  on  it,  I  suffer  pain.  I  have  recently  noticed  that  there  is  a 
breaking  out  around  the  injured  portion  of  the  right  ankle,  which  Dr. 
Tupper  says  is  due  to  deficient  circulation.  *  *  *  I  am  not  ready 
at  this  time  to  take  any  treatment  that  might  be  recommended  by  a 
competent  physician  as  a  step  toward  improving  my  condition.  I 
think  it  has  gone  so  far  that  there  is  no  use  of  it.  I  will  let  it  alone, 
and  see.  I  will  take  a  treatment,  but  not  an  operation.  That  answer 
is  given  in  view  of  the  advice  given  me  by  my  doctor,  who  said 
not  to  have  any  operation.  After  Dr.  Tupper  recommended  me  to 
the  Murphy  operation,  I  had  a  talk  with  Dr.  McGregor,  and  he  told 
me  to  let  it  alone  and  not  have  the  operation.  *  *  *  The  last  time 
I  did  any  work  was  at  the  time  I  received  my  injury,  and  I  have  not 
tried  to  do  any  work  since.  I  have  not  made  any  effort  to  secure  any 
employment  that  I  am  able  to  do  without  standing  on  my  feet.  *  * 
The  reason  that  I  have  not  done  that  is  because  I  am  not  able 
to.  *  *  *  My  hands  and  arms  are  both  in  good  shape.  My  left 
leg  is  all  right.  My  right  leg  is  all  right,  down  as  far  as  the  point 
where  I  was  struck  by  the  iron.  There  is  a  sore  there  (indicating  a 
point  on  the  leg)  down  to  a  point  below  my  knee,  my  right  leg  is  all 


444  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

right.  My  general  health  is  good,  and  I  have  a  good  appetite,  and  ex- 
cept for  my  leg,  I  am  a  perfectly  healthy  man.  *  *  *  I  have  no 
education  that  enables  me  to  take  a1  clerical  position,  and  when  I  sit 
down  my  leg  pains  me;  the  pain  is  with  me  all  the  time,  and  would 
interfere  with  me  in  any  sitting  down  occupation." 

Testimony  of  a  physician  was  introduced  which  tended  to 
prove  that  the  condition  of  claimant  can  be,  to  an  appreciable 
extent,  remedied  by  a  surgical  operation.  In  part  he  said: 

"In  a  case  similar  to  Mr.  Bruce's  case,  they  get  such  results  that 
the  injured  man,  at  the  conclusion  of  this  12  months,  is  able  to  work, 
and  stand  on  his  feet,  because  they  remove  the  very  cause  of  the 
condition — that  is,  the  removal  of  this  bony  tissue  that  is  formed 
there,  which  impinges  on  the  nerves,  and  that  would  have  a  tend- 
ency to  cause  pain.  I  believe  in  this  case  an  operation  over  a  year 
ago  would  have  remedied  the  condition  from  which  Mr.  Bruce  now 
suffers.  Any  operation  would  remedy  it  I  think.  I  said  so  then,  and 
I  say  so  now.  In  my  opinion,  Mr.  Bruce  has  not  got  now  ten  per 
cent  of  function  in  his  foot.  *  *  *  Poor  circulation  caused  the 
discolorations  breaking  out  around  the  wound, — a  general  weakness 
due  to  the  circulation,  which  you  always  find  in  a  wound  of  that 
kind.  He  has  recovered  so  far  as  nature  is  comcerned.  It  has  formed 
a  splint.  He  has  recovered  as  much  as  he  ever  will,  and  so  far  as  the 
usefulness  is  concerned,  he  is  practically  disabled  with  that  ankle 
and  foot  at  the  present  time.  He  does  not  appear  to  have  recovered 
but  I  contend  that  the  man  was  totally  disabled  from  work.  He  has 
not  gotten  over  the  injury,  and  I  see  no  immediate  prospect  for  his 
recovery  unless  he  has  the  operation.  That  operation  is  not  guess- 
work. There  is  a  certain  per  cent,  of  chances  against  him.  It  is  not 
40  per  cent.,  but  it  is  not  guesswork.  Murphy  has  got  this  work  down 
to  a  science.  *  *  *  *  Following  an  operation  on  Mr.  Bruce,  after 
nature  gets  in  her  work  of  healing  and  cleaning  up  things, — after  the 
operation,  assuming  that  the  operation  is  not  a  success,  his  condition 
will  not  be  any  worse  than  now.  I  don't  see  any  reason  why  it  should 
be.  There  is  no  great  risk  attending  the  operation.  The  risk  of  an 
operation  is  due  to  the  anesthetic.  They  have  got  it  down  to  an 
absolute  science.  There  is  not  one  fatality  in  40,000." 

To  the  writ  of  certiorari  the  Board  returns  as  a  part  of  its 
finding: 

"The  position  and  claim  of  said  Bruce  is  set  forth  in  his  answer  to 
said  petition  as  follows:  'That  the  conditions  are  not  the  same  as 


BRUCE  vs.  TAYLOR  AND  MALISKEY.         445 

though  the  undersigned  had  lost  a  foot  in  which  case  he  could  have 
had  recourse  to  an  artificial  limb  and  gone  on  with  some  employment. 
As  it  now  stands  he  is  entirely  disabled  and  denies  that  the  petitioner 
is  entitled  to  the  relief  asked.'  The  Board  found  from  the  evidence 
and  the  inspection  of  the  injured  limb  that  this  claim  was  sustained. 
While  no  parts  of  the  body  except  the  foot  and  ankle  in  question  are 
affected,  the  condition  is  such  as  to  prevent  the  use  of  an  artificial 
limb  or  appliance  and  to  disable  Mr.  Bruce  from  following  his 
customary  employment.  Such  condition  so  far  has  prevented  him  from 
following  any  employment.  In  the  opinion  of  the  Board  the  refusal  of 
the  defendant  to  submit  to  the  proposed  operation,  referred  to  in  the 
petition,  was  not  so  unreasonable  as  to  justify  the  stopping  of  his 
compensation,  the  operation  being  a  serious  one  and  the  result 
doubtful." 

OSTRANDER,  J.     (After  stating  the  facts) : 

If  claimant  is  totally  disabled,  his  compensation  must  con- 
tinue to  be  paid,  not  for  longer  than  500  weeks.  Plaintiffs  in 
certiorari  argue  that  it  is  anomalous  that  he  should  be  per- 
mitted to  recover  for  a  period  greater  than  the  one  fixed  for 
the  total  loss  of  his  foot,  and  it  is  suggested  that  the  statute, 
section  10,  be  construed  to  mean  for  the  loss  of  a  foot,  or  what 
is  equivalent  thereto. 

Section  9  and  the  applicable  parts  of  section  10,  of  Part 
II,  of  Act  No.  10,  Public  Acts,  Extra  Session,  1912,  read: 

"Sec.  9.  While  the  incapacity  for  work  resulting  from  the  injury  is 
total,  the  employer  shall  pay,  or  cause  to  be  paid  as  hereinafter  pro- 
vided, to  the  injured  employe  a  weekly  compensation  equal  to  one- 
half  his  average  weekly  wages,  but  not  more  than  ten  dollars  nor  less 
than  four  dollars  a  week;  and  in  no  case  shall  the  period  covered  by 
such  compensation  be  greater  than  five  hundred  weeks,  nor  shall  the 
total  amount  of  all  compensation  exceed  four  thousand  dollars. 

"Sec.  10.  While  the  incapacity  for  work  resulting  from  the  injury 
is  partial,  the  employer  shall  pay,  or  cause  to  be  paid  as  hereinafter 
provided,  to  the  injured  employe  a  weekly  compensation  equal  to  one- 
half  the  difference  between  his  average  weekly  wages  before  the  injury 
and  the  average  weekly  wages  which  he  is  able  to  earn  thereafter,  but 
not  more  than  ten  dollars  a  week;  and  in  no  case  shall  the  period 
covered  by  such  compensation  be  greater  than  three  hundred  weeks 
from  the  date  of  the  injury.  In  cases  included  by  the  following 
schedule  the  disability  in  each  such  case  shall  be  deemed  to  continue 


446  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

for  the  period  specified,  and  the  compensation  so  paid  for  such  injury 
shall  be  as  specified  therein,  to-wit: 

***** 

"For  the  loss  of  a  foot,  fifty  per  centum  of  average  weekly  wages 
during  one  hundred  and  twenty-five  weeks;" 

The  Board  has  found  that  claimant's  incapacity  for  work  is 
total.  It  would  seem  that  the  finding  might  well  have  been 
that  his  incapacity  is  partial  only,  thus  limiting  payments  to 
300  weeks,  in  view  of  claimant's  admission  that  he  had  not 
tried  to  work  since  receiving  his  injury,  nor  sought  any  em- 
ployment other  than  such  as  requires  him  to  stand  on  his 
feet.  However,  I  think  there  is  some  testimony  tending  to 
support  the  finding.  We  cannot  by  construction  of  the 
statute  make  a  case  of  partial  incapacity  for  work  when  the 
fact  is  found  that  the  incapacity  is  total. 

The  conclusion  of  the  Board  will  not  be  disturbed. 


BELL  vs.  HAYES-IONIA  COMPANY.  447 


SUPREME  COURT. 

JOSIAH  V.  BELL, 

Claimant  and  Appellee, 
vs. 
HAYES-IONIA  COMPANY, 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 

Respondents  and  Appellants. 

HERNIA — HELD  PERSONAL  INJURY  BY  ACCIDENT. 

Claimant  suffered  a  hernia  from  exertion  in  trying  to  raise  a  window 
in  the  factory  where  he  was  employed.  The  evidence  and  facts 
are  reviewed  in  the  opinion  in  detail,  the  Court  holding  that  the 
hernia  so  received  constituted  a  personal  injury  by  accident  within 
the  meaning  of  the  Workmen's  Compensation  Law. 

Certiorari  to  the  Industrial  Accident  Board  to  review  an 
award  in  favor  of  claimant  on  account  of  a  hernia.  Affirmed. 

R.  A.  Colwell,  of  Ionia,  for  claimant. 

Beaumont,  Smith  d  Harris,  of  Detroit,  for  respondents. 

KUHN,  J.  The  claimant  has  been  awarded  compensation 
under  Act  10,  P.  A.,  1912.  The  award  was  made  in  the  first 
instance  by  a  committee  of  arbitration,  and  was  approved  by 
the  Industrial  Accident  Board,  and  that  decision  is  brought 
to  this  court  by  certiorari,  for  a  review  of  the  findings. 

The  substance  of  the  testimony  which  bears  on  the  alleged 
accident  is  that  the  claimant  was  employed  by  the  respondent 
in  work  on  automobile  bodies  which  required  frequent  lift- 
ing of  them;  that  on  May  29,  1914,  the  window  of  the  room 
where  he  was  working  had  been  put  down  during  a  storm, 
and  had  swollen  enough  to  make  it  stick;  after  the  storm 
had  ceased,  Bell  put  it  up  again,  and  it  required  considerable 
exertion.  He  testified  that  after  lifting  the  window  he  "felt 


448  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

something  come  down  that  felt  quite  painful;"  that  "when  I 
felt  the  pain  after  lifting  the  window,  I  went  to  the  toilet  and 
found  a  lump  there.  *  *  *  The  lump  was  about  like  an 
egg.  It  was  on  my  right  groin.  I  never  noticed  the  lump  be- 
fore." 

This  happened  at  4  o'clock.  He  continued  to  work,  lifting 
bodies,  until  5 :30  o'clock,  closing  time.  On  his  way  home  he 
felt  faint,  and  complained  to  his  wife  of  an  inclination  to 
vomit.  When  asked  whether  he  noticed  any  condition  that 
made  him  think  he  had  hernia,  he  said  : 

"It  came  down  Friday  night.  I  got  it  back  Saturday,  and  Sunday 
it  stayed  in  place.  On  Monday  when  I  went  to  work,  it  came  out 
again." 

He  did  not  work  Saturday  and  Sunday,  but  returned  to  his 
usual  work  on  Monday,  and  suffered  pain  all  day.  When  he 
reached  home  that  night,  the  doctor  was  called,  and  after  some 
effort  reduced  the  hernia.  An  operation  proved  necessary, 
and  was  performed,  and  the  claimant  was  disabled  for  10 
weeks.  Compensation  was  awarded  him  for  that  period  at 
$6.92  per  week,  in  addition  to  medical  and  hospital  expenses 
for  3  weeks,  the  period  of  his  confinement. 

Among  the  several  points  relied  upon  by  respondents  for 
a  disallowance  of  the  claim,  the  one  most  extensively  dis- 
cussed is  that  the  injury  did  not  result  from  an  accident.  The 
argument  goes  upon  the  theory  that  a  hernia  is  the  result, 
"not  of  a  single  fortuitous  event,  but  either  of  the  anatomical 
defect  of  the  claimant  or  of  the  long  continued  lifting  for  a 
number  of  months ;"  that  hernia  is  the  result  of  a  very  gradual 
process;  that  it  is  not  an  accident,  but  a  disease.  Medical 
authorities  are  quoted  from,  and  the  testimony  of  expert  wit- 
nesses presented,  to  substantiate  the  theory.  But  whether 
this  theory  is  correct  or  not,  the  argument  is  disposed  of  by 
the  decision  in  the  recent  case  of  Robbins  v.  Original  Gas 
Engine  Co.,  23  P.  L.  N.  142.  There  is  evidence  that  the  claim- 
ant felt  a  pain  in  the  groin  after  raising  the  window,  and 


BELL  vs.  HAYES-IONIA  COMPANY. 


449 


discovered  a  hernial  protuberance  immediately  afterward.  He 
continued  to  work,  and  "both  lifting  the  window  and  lifting 
the  body  caused  this  pain.  I  was  pulling  up  the  window 
when  the  pain  came  on,  and  also  when  I  lifted  the  body." 
The  work  on  Monday,  after  he  had  "got  the  hernia  back/' 
caused  more  pain,  and  brought  it  down  again,  so  that  the 
physician  had  difficulty  reducing  it.  It  is  clear  that  the  com- 
mittee and  the  Board  were  justified  in  finding  that  the  hernia 
was  pushed  through  and  made  so  acute  by  the  lifting  of  the 
window  as  to  disable  the  claimant.  See  La  Veck  v.  Parke, 
Davis  &  Co.,  23  D.  L.  N.  13.  Such  an  injury  entitled  the  claim- 
ant to  compensation.  See  Skinner  v.  Commercial  Travelers' 
Mutual  Accident  Association,  23  D.  L.  N.  121;  Robbins  v.  Or- 
iginal Gas  Engine  Co.,  supra. 

The  respondents  offered  in  evidence  the  report  of  Dr.  Knapp, 
who  attended  the  claimant,  in  which  it  was  stated: 

"Patient  says  for  2  or  3  weeks  been  having  pain  in  groin,  and  that 
while  closing  a  window  at  factory  felt  strain  which  in  2  or  3  days 
resulted  in  strangulated  hernia." 

It  was  presented  in  connection  with  the  following  testi- 
mony of  Dr.  Knapp: 

"I  would  call  it  a  perfectly  fresh  puncture.  It  was  evidence  to  me 
that  the  hernia  was  caused  as  claimed.  Indications  are  to  the  effect 
that  the  act  of  putting  up  the  window  and  lifting  the  body  from  the 
work  bench  caused  the  bowel  to  go  through  and  form  a  sac.  *  *  * 

"I  believe,  as  near  as  I  can  tell,  he  had  no  rupture  before,  and  he 
had  it  afterwards.  The  preponderance  of  evidence  seems  to  show  that 
it  came  on  at  that  time  as  the  result  of  his  work. 

"Mr.  Smith:  Dr.  Knapp,  did  he  say  anything  to  you  about  having 
had  a  pain  in  his  side  previous  to  this? 

"Dr.  Knapp:  Afterwards  I  asked  him  how  long  he  had  had  it,  and 
he  said  he  did  not  know  anything  about  it;  on  Saturday  he  lifted  the 
window  and  the  body,  and  felt  it  cpme  on  him  then. 

"Mr.  Smith:  You  reported  to  the  Insurance  Company,  'Patient  says 
for  two  or  three  weeks  been  having  pain  in  groin.'  Is  that  so,  Mr.  Bell? 

"Mr.  Bell:    I  don't  remember  saying  that. 

"Mr.  Smith:  The  report  was  made  June  9th;  where  do  you  suppose 
the  doctor  got  that  idea? 

"Mr.  Bell:  I  might  have  told  him  that.  I  have  tried  to  be  honorable 
57 


450  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

and  truthful,  and  always  have.  I  don't  remember  saying  that,  al- 
though I  might  have  said  it  at  that  time. 

"Mr.  Smith:    How  do  you  account  for  this  report? 

"Dr.  Knapp:  He  must  have  told  me  that  he  had  had  previous  pain 
there,  or  I  would  not  have  made  such  report.  It  might  be  that  this 
condition  arose  before  if  that  is  the  same  pain,  or  it  might  have  been 
a  pain  in  the  abdomen  lower  down." 

The  Board  rejected  the  report. 

This  evidence  might  properly  have  been  received,  since  it 
contradicted  a  part  of  Dr.  Knapp's  testimony.  But  the  error  is 
not  of  sufficient  importance  to  invalidate  the  findings.  The 
presence  of  a  structural  weakness  or  actual  pain,  antedating 
the  injury  alleged,  in  the  region  where  the  injury  occurred, 
does  not  preclude  a  recovery  if  the  injury  itself  is  distinct, 
and  the  result  of  a  particular  strain  causing  a  sudden  pro- 
trusion of  the  intestine.  As  in  Robbins  v.  Original  Gas  En- 
gine Co.,  supra,  there  was  testimony  to  support  a  finding  that 
the  claimant  made  a  distinct  and  unusual  exertion,  that  he 
immediately  felt  unusual  pain,  and  presently  discovered  a 
protrusion  through  the  abdominal  wall  about  the  size  of  an 
egg.  And  it  may  be  appropriately  said  here  also,  that 

"it  is  assumed  that  it  was  the  first  time  the  sac  had  been  forced 
through  the  abdominal  wall.  If  it  is  also  assumed  that  there  was  a 
certain  lack  of  physical  integrity  in  the  parts  where  the  injury  was 
manifested,  still  I  think  claimant  may  have  compensation  for  the  in- 
jury he  suffered."  Robbins  v.  Original  Gas  Engine  Co.,  23  D.  L.  N., 
p.  144. 

See  also  La  Veck  v.  Parke,  Davis  &  Co.,  supra,  and  recent 
decisions  of  the  Massachusetts  court,  Re  Madden,  111  N.  E. 
379,  and  Crowley  v.  City  of  Lowell,  id.  786,  for  an  application 
of  the  same  principle.  The  rejected  evidence  could  be  given 
its  due  weight  and  accorded  belief,  without  requiring  a  find- 
ing of  no  accidental  injury  on  May  29  resulting  from  the 
opening  of  the  window. 

Complaint  is  made  of  the  action  of  the  Board  in  excluding 
the  extracts  from  medical  textbooks,  offered  by  the  respond 
(Mils  jis  evidence  of   the  true   nature  of  hernia.     As   the  only 


BELL  vs.  HAYES-IONIA  COMPANY. 


451 


object  of  offering  such  evidence  could  have  been  to  prove  that 
hernia  is  not  an  accidental  injury,  in  view  of  what  has  been 
said  on  this  subject  it  is  unnecessary  to  discuss  this  question. 
It  is  contended  that  the  finding  of  the  Board  that  there 
was  an  accident  is  not  conclusive  on  this  court,  under  a  cor- 
rect construction  of  the  provision  that  the  "findings  of 
fact  made  by  the  Industrial  Accident  Board  acting  within  its 
power  shall,  in  the  absence  of  fraud,  be  conclusive."  Fraud 
is  not  averred  or  shown.  But  respondents'  counsel,  treating 
this  as  a  finding  of  fact,  contend  that  the  Board  acts  within 
its  power  only  when  it  deals  with  an  accident  to  an  employee 
arising  out  of  the  employment,  and  that  since  such  facts 
(viz.,  that  the  injury  was  an  accident,  the  injured  person  an 
employee,  and  the  accident  one  arising  out  of  the  employ- 
ployment)  are  jurisdictional,  the  Board's  finding  of  them  is 
not  conclusive  on  this  court.  "Unless  it  has  before  it  an  ac- 
cidental injury  arising  out  of  and  in  the  course  of  the  em- 
ployment, it  is  beyond  its  power  and  authority."  If  counsel 
mean  that  the  Board's  findings  of  fact  are  conclusive  only 
when  the  Board  is  dealing  with  an  accidental  injury  arising 
in  the  course  of  the  employment,  it  is  equivalent  to  saying 
that  such  findings  of  fact  are  conclusive  only  when  made  after 
the  facts  justifying  an  award  have  already  been  established. 
From  this  point  of  view,  it  is  difficult  to  see  what  facts  are 
to  be  found,  or  what  the  purpose  of  the  findings  could  be. 
Manifestly,  something  else  was  intended  by  the  words,  "act- 
ing within  its  power." 

Undoubtedly  the  Board  has  no  jurisdiction  to  make  an 
award  until  it  has  decided  upon  the  facts  found  by  it  that 
the  injured  person  was  an  employee,  that  the  injury  was  the 
result  of  an  accident,  and  that  the  accident  arose  in  the 
course  of  the  employment;  and  counsel  doubtless  means  to 
assert  only  that  the  conclusions  of  the  Board  on  these  points 
are  not  binding  on  this  court.  Perhaps  it  is  sufficient  to  say 
that  since  we  agree  with  the  conclusion  of  the  Board  on 
these  points,  any  discussion  of  the  question  is  unnecessary. 


452  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

However,  an  apparent  confusion  in  the  recent  decisions  de- 
serves some  attention. 

While  the  Board's  findings  of  fact  are  undoubtedly  con- 
clusive on  this  court  (see  Rayner  v.  Sligh  Furniture  Co.,  1*30 
Mich.  168;  Lindsteadt  v.  Sands  Salt  d  Lumber  Co.,  23  D.  L. 
N.  45),  it  is  clear  that  the  legal  conclusions  of  the  Industrial 
Accident  Board,  when  based  upon  findings  of  fact,  are  subject 
to  the  supervision  of  this  court.  See  recent  cases:  Bischoff 
v.  American  Car  &  Foundry  Co.,  23  D.  L.  N.  132;  Robbins  v. 
Original  Gas  Engine  Co.,  id.  142.  If  it  is  clear  upon  the  facts 
found  by  the  Board  that  as  a  legal  conclusion  an  injury  was 
not  accidental,  or  that  it  did  not  arise  in,  the  course  of  the 
employment,  a  contrary  conclusion  awarding  compensation 
will  not  be  allowed  to  stand.  The  Act  does  not  make  the 
Board's  legal  conclusions  binding  on  this  court.  It  was  said 
in  La  Veck  v.  Parke,  Davis  &  Co.,  23  D.  L.  N.  13,  that  "where 
there  is  testimony  upon  which  the  accident  board  can  base 
its  conclusion  we  will  not  review  its  action,"  and  cases  were 
cited  to  support  this  rule.  But  we  were  referring  then  to  a 
conclusion  of  fact.  In  Redfield  v.  Compensation  Insurance 
Co.,  183  Mich.  633,  the  findings  of  the  Board  which  were 
treated  as  final  when  supported  by  any  evidence  were  mat- 
ters purely  of  fact.  In  Bayne  v.  Riverside  Storage  &  Cart- 
age Co.,  181  Mich.  378,  the  question  whether  the  pneumonia 
which  caused  the  death  was  caused  by  a  particular  straining 
was  one  purely  of  fact,  and  since  the  testimony  was  conflict- 
ing, it  was  a  matter  for  the  determination  of  the  Accident 
Board.  It  was  not  intended  to  hold  that  whether  that  which 
caused  the  pneumonia  was  an  accident,  and  whether  the 
accident,  if  it  was  one,  arose  in  the  course  of  the  employment, 
were  purely  questions  of  fact  for  the  Board. 

Since  it  has  not  been  shown  that  the  Board  exceeded  its 
power  or  acted  fraudulently,  we  must  conclude  that  the 
hernia  was  caused  by  the  strain  on  the  29th  of  May,  and  the 
order  allowing  compensation  is  affirmed. 


ROBERTS  ET  AL.  vs.  WHALEY  AND  EDWARDS.  453 


SUPREME  COURT. 

INNIE  ROBERTS,  Incompetent, 

and  GLADYS  ROBERTS,  Minor, 
!y  W.  HENDERSON,  Guardian, 
5LARA  FACKLER, 

Applicants  and  Appellees, 

MURNA  ROBERTS  and  ELLIS  ROBERTS, 
Minors,  by  CARL  H.  REYNOLDS,  Guardian, 

Applicants  and  Appellants, 
vs. 

rILLIAM  H.  WHALEY  and  GEORGE  W.  EDWARDS, 
Co-partners,  as  WHALEY  &  EDWARDS, 

and 

UNITED  STATES  FIDELITY  &  GUARANTY 
COMPANY, 

Respondents  and  Appellants. 

DEPENDENTS — ILLEGITIMATE  CHILDREN  HELD  TO  BE. 
Decedent  at  the  time  of  his  injury  and  death  was  living  in  Grand 
Ledge,  his  family  apparently  consisting  of  a  wife  and  two  minor 
children.  It  later  developed  that  his  legal  wife  was  insane  and 
confined  in  the  Pontiac  State  Hospital  and  an  infant  daughter  by 
the  insane  wife  was  being  cared  for  and  supported  by  relatives. 
The  woman  with  whom  he  was  living  at  the  time  of  his  death  was 
not  his  wife  and  the  two  children  by  her  were  illegitimate. 

HELD:  That  the  illegitimate  children  were  entitled  to  the  com- 
pensation being  members  of  his  family  and  dependent  upon  him 
at  the  time  of  his  decease. 

Certiorari  to  the  Industrial  Accident  Board  to  review  the 
order  granting  compensation  to  the  wife  and  daughter.  Re- 
versed and  award  made  in  favor  of  illegitimate  children. 

F.  H.  Duseriberry,  of  Mt.  Pleasant,  for  applicants  and  ap- 
pellees. 


454  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Cunt  minx,  Xicltols  d  Rhoads,  of  Lansing,  for  applicants 
and  appellants. 

Clark,  Lockwood,  Bryant  cC  Klein,  of  Detroit,  for  respond- 
ents. 

BIRD,  J.  N.  H.  Roberts  was  killed  while  working  in  a 
sewer  in  Grand  Ledge.  Application  for  an  allowance  was 
made  to  the  Industrial  Accident  Board  on  behalf  of  his  in- 
sane wife  and  daughter,  and  also  on  behalf  of  his  two  illegiti- 
mate children  and  his  housekeeper.  Upon  a  stipulation  of 
facts,  an  award  was  made  and  divided  between  the  wife  and 
daughter.  We  are  asked  to  review  the  proceedings  on  behalf 
of  the  illegitimate  children,  and  the  defendant  insurance 
'  company. 

The  record  discloses  that  Roberts  was  married  to  Minnie 
Fox  in  the  year  1903.  In  the  following  year,  1904,  the 
daughter  Gladys  was  born.  Two  years  later,  in  1906,  the 
wife  became  insane  and  was  taken  to  the  asylum.  After 
the  mother  was  taken  away,  Gladys  went  to  live  with  a  Mr. 
Henderson,  where  she  has  since  resided  and  been  cared  for 
by  him  in  his  family.  Roberts  being  left  alone,  employed  a 
housekeeper.  He  appears  to  have  become  enamored  of  her, 
and  later  lived  with  her  openly  as  a  wife,  and  two  children 
were  born  .to  them,  Murna  and  Ellis,  the  appellants.  At  the 
time  Roberts  was  killed,  he  was  living  with  and  supporting 
these  children  and  their  mother.  The  wife,  Minnie,  was  still 
in  the  asylum  at  the  time  of  his  death,  and  had  been  sup- 
ported there  at  the  expense  of  the  State,  and  Gladys  had. been 
supported  by  Henderson,  and  it  appears  that  Roberts  had 
contributed  nothing  to  the  support  of  either  during  their  ab- 
sence. 

The  position  taken  by  the  defendant  insurance  company 
is  that  no  award  should  have  been  made,  because  neither 
the  wife  nor  Gladys  was  living  with,  nor  was  either  depend- 
ent on  Roberts  at  the  time  of  his  death,  and  further,  that 
the  law  will  not  encourage  the  immoral  relation  of  the  par- 
ents by  recognizing  their  illegitimate  children.  On  behalf 


I  ROBERTS  BT  AL.  vs.  WHALEY  AND  EDWARDS.  455 

of  the  illegitimate  children,  it  is  urged  that  they  are  the  chil- 
dren of  the  deceased,  and  that  they  actually  lived  with  him, 
and  as  a  matter  of  fact,  were  wholly  dependent  upon  him, 
and  are,  therefore,  by  reason  of  such  dependency,  entitled  to 
._fl  the  award. 

(1)  Is  the  wife  entitled  to  share  in  the  award? 
It  appears  without  dispute  that  the  wife  was  not  living 
with  her  husband  at  the  time  of  his  death,  and  had  not  lived 
with  him  for  nine  years  prior  thereto.  Therefore,  it  is  ob- 
vious that  if  she  is  entitled  to  the  award,  it  must  be  by  rea- 
son of  her  dependency  on  him.  That  question  is  one  of 
fact.  The  stipulation  of  facts  shows  that  she  has  been  sup- 
ported by  the  State  for  upwards  of  9  years,  and  that  the  de- 
ceased has  contributed  nothing.  I  am  unable  to  see  how 
upon  this  record  it  can  be  said  that  she  was  dependent  upon 
her  husband  for  support  at  the  time  of  his  death.  The  record 
simply  shows  that  she  was  not.  For  cases  supporting  this 
view,  see: 

New  Monckton  Collieries  Ltd.  vs.  Keeling,  4  B.  W.  C. 

0.  332. 
Lee  vs.  "Bessie,"  1  K.  B.  85;  81  L.  J.  K.  B.  114;  105 

L.  T.  659,  5  B.  W.  C.  C.  55. 

Potted  vs.  Great  Northern  Ry.  Co.,  5  B.  W.  C.  C.  620. 
Devlin  vs.  Delaw  Main  Collieries,  5  B.  W.  C.  C.  349. 
Niddrie  d  Benhar  Coal  Co.,  Ltd.  vs."  Young,  5  B.  W. 

C.  C.  552. 

In  Re  Nelson  (Mass.),  105  N.  E.  357. 
In  Re.  Bentley  (Mass.),  104  N.  E.  342. 
Batista  vs.  West  Jersey  &  Seashore  R.  R.  Co.,  (New 

Jersey),  99  Atl.  954. 

In  Re.  Jones,  Ohio-Ind.  Com.  6  N.  C.  C.  A.  250. 
Finn  vs.  Ry.  Co.,  22  D.  L.  N.  1201. 

Counsel's  argument  in  effect  amounts  to  this,  that  a  pre- 
sumption of  dependency  arises  from  the  fact  of  marriage,  and 
the  consequent  duty  of  her  husband  to  support  her. 


456  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Where  the  issue  of  dependency  is  one  of  fact,  proof  that 
claimant  is  the  wife  of  the  deceased  is  of  course,  admissible, 
and  in  connection  with  other  facts,  may  be  of  help  in  determ- 
ing  that  issue.  Or,  if  the  issue  is  whether  the  wife  is  con- 
clusively presumed  to  be  dependent,  proof  of  the  fact  of  mar- 
riage standing  alone,  might  raise  a  presumption  that  she 
was  living  with  the  deceased  at  the  time  of  his  death,  be- 
cause wives  usually  live  with  their  husbands.  But  where 
proof  of  marriage  is  followed  by  a  concession  that  she  had 
not  lived  with  the  deceased  for  nine  years  prior  to  his  death, 
that  she  had  been  supported  by  the  State,  and  that  her  hus- 
band had  contributed  nothing  toward  her  support  during 
that  period,  the  value  of  such  proof,  either  on  the  question  of 
dependency,  or  in  aid  of  the  presumption,  has  very  little 
force.  The  fact  that  claimant  did  not  voluntarily  separate 
from  -her  husband,  is  urged  as  a  reason  why  she  should  be 
regarded  as  constructively  living  with  him  during  her  ab- 
sence. Were  this  proceeding  one  to  recover  for  necessaries 
furnished  her  by  another,  or  a  divorce  proceeding,  in  which 
permanent  alimony  was  to  be  awarded  to  her,  this  considera- 
tion would  be  important.  This  proceeding,  however,  is  based 
upon  a  statute  which  provides  a  fund,  not  for  the  benefit  of 
the  workingman's  estate,  not  for  the  benefit  of  his  creditors, 
not  for  those  equitably  entitled  to  be  supported  by  him,  but 
the  fund  is  provided  for  the  benefit  of  those  dependent  on 
his  labor  at  the  time  of  his  death. 

The  act  provides: 

"If  death  results  from  the  injury,  the  employer  shall  pay,  or  cause 
to  be  paid,  subject,  however,  to  the  provisions  of  Section  12  hereof, 
in  one  of  the  methods  hereinafter  provided,  to  the  dependents  of  the 
employe."  (Laws  1912,  Act  10,  Part  2  Sec.  5). 

Unless  the  claimant  is  actually  dependent  upon  the  em- 
ploye at  the  time  of  his  death,  she  does  not  come  within  the 
class  designated  by  the  statute,  however  unjust  or  inequitable 
it  may  appear.  What  may  have  led  to  the  separation  is  of 
little  importance,  if  it  results  in  the  claimant  ceasing  to  be 


ROBERTS  ET  AL.  vs.  WHALEY  AND  EDWARDS.  457 

a  dependent  upon  the  employe.  For  instance  where  claim- 
ants were  being  cared  for  in  the  Work  House,  Reformatory 
and  Asylum,  see: 

Rees  vs.  Penrikyber  Nav.  Colliery  Co.,  1  K.  B.  259, 
72  L.  J.  K.  B.  85,  87  L.  T.  661,  19  L.  S.  R.  113. 

Trainer  vs.  Robert  Addis  &  Sons  Collieries,  Ltd.,  42 
So.  L.  R,  85,  7  F.  115,  12  S.  C.  L.  S.  460. 

Berlin  vs.  Chesky,  Wis.  Ind.  Com.  Dec.  22,  1913. 

In  putting  this  construction  on  the  act,  we  do  not  mean 
to  hold  that  a  wife  who  is  temporarily  absent  for  travel, 
business,  pleasure  or  health,  as  indicated  by  Mr.  Justice 
Steere,  in  Finn  v.  Ry.  Supra,  would  be  excluded  from  the  bene- 
fits of  the  act,  if  she  has  not  ceased  to  be  dependent.  Our 
conclusion  on  this  record  is  that  the  wife  was  not  a  depend- 
ent within  the  meaning  of  the  act,  and  therefore,  is  no.t  en- 
titled to  participate  in  the  award. 

(2)  Is  Gladys  entitled  to  share  in  the  fund? 

What  has  been  said  with  reference  to  her  mother,  in  the 
main,  applies  to  Gladys.  No  presumption  of  dependency  in 
her  behalf,  can  be  indulged.  In  order  to  indulge  the  presump- 
tion of  dependency  in  her  behalf,  it  must  appear  that  she 
was  living  with  the  deceased  at  the  time  of  his  death,  and 
that  there  was  no  surviving  parent.  Neither  one  of  these 
conditions  was  present,  and  therefore,  she  is  not  within  the 
class  presumptively  entitled  to  the  fund.  If  she  is  entitled 
to  participate  in  the  fund,  it  must  be  by  reason  of  her  hav- 
ing been  dependent  upon  her  father  at  the  time  of  his  death. 
The  record  conclusively  shows  that  she  was  not  dependent 
upon  him  at  that  time,  therefore,  she  is  not  entitled  to  partici- 
pate in  the  award. 

(3)  Are  the  illegitimate  children  entitled  to  share  in  the 
award? 

It  appears  to  be  conceded  upon  the  record  that  Murna  and 
Ellis  are  the  children  of  the  deceased.  It  further  appears 
that  they  lived  with  him  and  were  members  of  his  family, 


458  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

and  that  they  were  dependent  upon  him  at  the  time  of  his 
decease.  They  were  actually  cared  for  and  supported  by  the 
deceased,  and  they  had  a  right  to  expect  a  continuation  of 
the  support  and  care  had  he  lived.  This  brings  them  clearly 
within  the  statute,  and  establishes  as  a  matter  of  fact,  that 
they  were  dependent,  and  therefore,  entitled  to  the  fund. 
But  it  is  said  they  are  illegitimate  children,  and  that  the 
law  will  not  encourage  the  immoral  and  unlawful  relation  of 
the  parents  by  recognizing  them.  The  children  are  in  no 
wise  responsible  for  their  existence  or  status.  They  are  here, 
and  must  be  cared  for. and  supported.  They  were  cared  for 
and  supported  by  the  deceased  up  to  the  time  of  his  death. 
It  was  his  legal  and  moral  duty  to  support  them,  and  he  was 
responding  to  that  duty  when  death  overtook  him.  We 
think  they  are  clearly  within  the  class  entitled  to  the  fund, 
and  it  must  be  passed  to  them.  The  award  made  by  the  In- 
dustrial Accident  Board  must  be  set  aside,  and  the  fund 
awarded  to  them. 


SCHREWE  vs.  NEW  YORK  CENTRAL  RAILROAD  CO.         459 


SUPREME  COURT. 

FRANCIS  SCHREWE, 

Claimant, 
vs. 
NEW  YORK  CENTRAL  RAILROAD  COMPANY, 

Defendant. 

SUPREME  COURT — WHEN  APPEAL  WILL  NOT  LIE. 

Writ  of  certiorari  to  review  the  award  of  a  committee  of  arbitration 
is  dismissed  on  motion,  the  court  holding  that  a  party  feeling 
aggrieved  by  such  award  must  first  take  the  matter  before  the 
full  Board  for  review  as  provided  by  statute;  and  that  it  may  be 
taken  to  the  Supreme  Court  on  questions  of  law  only  after  such 
hearing  on  review. 

OSTRANDER,  J.  Part  III  of  Act  No.  10,  Public  Acts  (Extra 
Session  1912),  is  entitled  Procedure.  If  an  injured  employe  and 
his  employer  or  the  indemnitor  of  the  employer  agree  con- 
cerning the  compensation  to  be  paid  the  employe  under  the 
act,  their  agreement,  reduced  to  writing,  may  be  filed  with  the 
industrial  accident  board  and,  if  approved,  is  final  and  bind- 
ing. If  an  agreement  is  not  reached,  the  precedure  is,  first, 
the  formation  of  a  committee  of  arbitration,  one  member  of 
which  shall  be  a  member  of  the  industrial  accident  board. 
The  committee,  having  made  an  investigation  and  award, 
files  its  decision  with  the  industrial  accident  board,  and, 

"Unless  a  claim  for  a  review  is  filed  by  either  party  within  seven 
days,  the  decision  shall  stand  as  the  decision  of  the  industrial  accident 
board." 

If  a  claim  for  review  is  filed,  the  board  shall  promptly  re- 
view the  decision  of  the  committee  "and  such  records  as  may 
have  been  kept  of  its  hearings,"  hear  such  additional  evidence 
as  the  parties  wish  to  submit, 

"and  file  its  decision  therein  with  the  records  of  such  proceedings." 
"The  findings  of  fact  made  by  said   industrial   accident  board   act- 


460  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ing  within  its  powers,  shall,  in  the  absence  of  fraud,  be  conclusive, 
but  the  supreme  court  shall  have  power  to  review  questions  of  law 
involved  in  any  final  decision  or  determination  of  said  industrial  acci- 
dent board." 

Either  party  may  present  to  the  circuit  court  of  the 
county  in  which  the  accident  occurred  the  approved  agree- 
ment settling  the  compensation  to  be  paid,  the  unappealed 
from  award  of  the  committee  or  the  decision  of  the  in- 
dustrial accident  board  upon  review,  and  the  court  is  em- 
powered to  enter  judgment  in  accordance  therewith  without 
notice. 

It  appears  that,  although  the  writ  of  certiorari  issued  in 
this  proceeding  is  addressed  to  the  industrial  accident  board, 
the  board  has  not,  in  fact,  been  asked  to  review  the  award 
of  the  committee.  The  question  presented  is  whether  this 
court  should  review,  in  certiorari  proceedings,  the  unappeal- 
ed from  award  of  a  committee  of  arbitration  or  whether  a 
party  claiming  to  be  aggrieved  by  the  action  of  the  commit- 
tee should  first  seek  a  review  of  the  committee  action  by 
the  industrial  accident  board. 

The  proceeding  is  a  special  and  peculiar  one.  It  may  or 
may  not  be  an  adversary  proceeding  with  respect  both  to 
the  facts  and  the  law.  To  the  industrial  accident  board  is 
confided,  finally,  the  determination  of  the  facts  according  to 
which  an  award  of  compensation  is  made,  or  is  refused.  There 
is  involved,  in  every  case,  the  application  of  the  statute  to 
the  determined  facts.  The  decision,  whether  of  the  committee 
or  of  the  board,  involves  such  an  application  of  the  statute. 
It  is  the  decision  of  the  committee  which  upon  seasonable 
application  may  be  reviewed  by  the  board  and,  upon  such 
review,  corrected,  if  correction  is  required.  It  is  questions 
of  law  involved  in  any  final  decision  or  determination  of  the 
board  which  may  be  determined  by  the  court.  It  is  plain, 
I  think,  that  the  act  secures  to  parties  claiming  to  be  ag- 
grieved by  the  decision  of  a  commitee,  first,  an  appeal,  second, 
a  review  of  questions  of  law  involved  in  the  decision  on  ap- 


KILGREN  vs.  STAFFORD   COMPANY. 


461 


peal,  lu  any  event,  such  a  construction  of  the  law  is  war- 
ranted by  the  terms  of  the  law  and,  being  warranted,  should 
be  adopted  because  it  makes,  first,  for  uniformity  and  sim- 
plicity of  procedure,  and  second,  it  prevents  setting  aside  and 
amending  by  the  court  decisions  which  have,  in  fact,  never 
received  the  attention  of  the  body  charged  with  the  execu- 
tion of  the  law;  a  body  which  it  is  presumed  will,  upon  re- 
view, correct  the  decision  complained  about. 

In  my  opinion,  the  motion  to  dismiss  the  writ  of  certiorari 
should  be  granted,  with  costs. 


BY  THE  BOARD. 


FRANK  KILGREN, 

Applicant, 
vs. 
E.  H.  STAFFORD  MANUFACTURING  COMPANY, 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 
Respondents. 

AVERAGE  WEEKLY  WAGE. 

Applicant  had  been  in  the  employ  of  respondent  company  for  a  num- 
ber of  years  as  a  molder  at  a  wage  of  more,  than  $20  a  week.  In 
the  summer  of  1915  he  left  the  company  and  entered  the  employ 
of  the  traction  company  at  Lansing  as  a  conductor  where  he 
worked  for  about  two  months  at  a  daily  wage  of  $2.07.  He  re- 
turned to  the  company  and  asked  for  and  was  promised  his  old 
job.  The  molding  floor  was  being  repaired  and  he  was  put  to  work 
in  the  veneer  room  at  work  commanding  a  wage  of  20c  an  hour, 
and  while  at  this  work  he  was  injured. 

HELD:  That  his  compensation  should  be  based  upon  the  wage  for 
the  veneer  room  work  in  which  he  was  engaged  at  the  time  of  the 
injury. 


462  MICHIGAN  WORKMEN'S   COMPENSATION  CASES. 

The  applicant,  in  the  summer  of  3915,  was  in  the  employ 
of  respondent  as  a  molder  at  a  wage  of  twenty  ($20.00)  dol- 
lars per  week  and  upwards,  having  been  in  such  employ  for 
about  three  years.  He  left  this  employment  and  came  to 
Lansing  and  worked  for  the  Traction  Company  as  a  con- 
ductor for  about  two  months  at  an  average  daily  wage  of 
two  dollars  ($2.07)  and  seven  cents.  Before  going  to  Lansing 
he  talked  with  the  Superintendent  about  keeping  his  job 
open,  so  that  he  might  come  back  if  he  did  not  like  the 
work  on  the  railroad,  and  was  assured  by  the  Superintendent 
that  he  would  get  the  job  back  if  he  wanted  to  return.  In 
the  early  part  of  October  he  came  back  to  respondent's  foun- 
dry at  Ionia,  saw  the  Superintendent,  and  asked  if  he  could 
have  his  old  job  back.  The  Superintendent  told  him  he 
would  see  the  foreman,  which  he  did,  and  then  told  appli- 
cant, "You  will  get  your  job  back  again,"  and  that  he  could 
come  to  work  Monday.  Applicant  came  on  Monday  to  go  to 
work,  but  was  informed  that  certain  changes  were  being 
made  on  the  molding  floor  and  that  they  could  not  put  him 
to  work  as  a  molder  for  a  day  or  two,  and  that  he  should 
go  to  work  in  the  veneer  room  until  such  time  as  the  foundry 
floor  was  in  shape  for  use.  He  worked  about  a  day  and  a 
quarter  in  the  veneer  room  when  he  met  with  an  accident  re- 
sulting in  the  loss  of  the  four  fingers  of  his  right  hand,  which 
were  cut  off  by  a  saw.  The  principal  question  in  the  case 
is  the  rate  of  wages.  The  wage  in  the  molding  room  was  in 
access  of  twenty  ($20.00)  dollars  per  week,  while  the  wage 
in  the  veneer  room  was  twenty  (20c)  cents  an  hour,  it  being 
claimed  that  at  the  time  he  was  put  to  work  his  wages  were 
fixed  at  twenty  (20c)  cents  per  hour  by  the  timekeeper. 

We  think  that  at  the  time  applicant  went  to  Lansing  to 
work  as  a  conductor  he  terminated  the  relation  of  employer 
and  employe  between  himself  and  respondent.  The  talk  of 
holding  the  job  open  for  him,  if  he  should  want  to  come  back, 
did  not  amount  to  a  contract  continuing  that  relation,  but 
was  more  in  the  nature  of  a  friendly  assurance  of  re-employ- 


KILGREN  vs.  STAFFORD   COMPANY.  463 

ment  if  he  should  desire  to  return.  Upon  his  return,  the 
Superintendent  proceeded  to  make  arrangements  to  give  him 
back  his  old  job  as  molder,  intending  that  he  should  com- 
mence work  as  such  on  Monday,  October  11,  1915.  Condi- 
tions in  the  foundry  were  such  that  he  could  not  commence 
on  that  day,  as  the  floor  would  not  be  ready  for  use  for  a 
day  or  two.  Under  those  circumstances,  it  would  be  natural 
to  postpone  the  commencement  of  work  until  the  floor  was 
ready,  or  to  find  or  suggest  some  other  work  to  do  in  the 
interim.  The  latter  course  was  followed,  and  applicant  was 
put  to  work  in  the  veneer  room  at  a  class  of  work  command- 
ing a  much  lower  wage.  It  is  claimed  that  the  wage  was 
fixed  in  the  presence  and  hearing  of  applicant,  but  this  he 
denies  having  heard. 

The  true  status  of  the  parties  at  the  time  of  the  accident 
seems  to  be  that  applicant  was  put  to  work  temporarily  in 
the  veneer  room,  the  understanding  of  the  parties  being  that 
he  would  be  transferred  to  the  molding  room  as  soon  as  the 
floor  was  in  readiness  for  use.  The  employment  in  which 
he  was  engaged  at  the  time  of  the  injury  was  the  work  of  the 
veneer  room,  that  being  the  beginning  of  a  new  employment 
by  respondent. 

Though  it  was  contemplated  that  he  would  later  be  em- 
ployed as  a  molder,  that  point  was  never  reached  on  account 
of  the  occurrence  of  the  accident,  which  he  claims  disables 
him  from  doing  molding  work.  The  fact  that  the  company 
intended  to  give  him  the  work  in  the  molding  room  and  that 
he  expected  to  be  given  such  work,  we  think  does  not  change 
the  situation.  His  actual  employment,  and  we  may  say  his 
only  employment,  was  that  in  the  veneer  room  where  the  wage 
was  twenty  cents  per  hour.  Even  if  he  did  not  hear  the  con- 
versation purporting  to  fix  his  wage  in  the  veneer  room,  from 
his  experience  in  the  shop  and  plant  of  the  company,  he  pre- 
sumably had  a  fair  knowledge  of  the  rate  of  wages  paid 
for  that  class  of  work.  If  the  wages  were  not  fixed  by  agree- 
ment, then  he  would  be  entitled  to  the  going  wage  for  the 


464  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

class  of  work  that  he  was  doing.  He  was  at  liberty  to  accept 
this  employment  in  the  veneer  room,  or  to  wait  until  condi- 
tions were  such  that  he  could  go  to  work  in  the  molding 
room.  The  case  is  different  from  what  it  would  be  if  he  had 
been  previously  working  as  a  molder  and  was  temporarily 
transferred  to  the  veneer  room.  His  going  to  work  as  a  con- 
ductor completely  severed  his  relation  with  the  company  and 
he  came  back  a  new  employe.  The  only  work  that  he  did  after 
his  return  was  the  veneer  room  work,  in  which  he  received 
his  injury. 

We  think  that  the  award  on  arbitration  should  be  affirmed. 


Petition  for  writ  of  certiorari  denied  in  this  case  July  21,  1916. 


HENRY  ROBINSON, 

Applicant, 
vs. 
WAYNE  COUNTY  MOVING  &  STORAGE  COMPANY 

and 

MICHIGAN  WORKMEN'S  COMPENSATION 
MUTUAL  INSURANCE  COMPANY, 
Respondents. 

ARISING  our  OF. 

Applicant  was  a  teamster  in  the  employ  of  the  moving  and  storage 
company  but  working  on  the  streets  of  the  City  of  Detroit  haul- 
ing sweepings  which  were  gathered  in  piles  along  the  street.  As  a 
part  of  his  work  he  was  required  to  move  teams  when  necessary 
to  get  at  and  load  the  sweepings.  His  action  in  moving  a  certain 
team  was  resented  by  its  driver,  who  struck  and  injured  appli- 
cant with  a  pick-hammer. 


ROBINSON  vs.  WAYNE  COUNTY  ETC.  COMPANY  465 

HELD:     1.     That  the  injury  arose  out  of  the  employment  and  flowed 
from  a  danger  reasonably  incident  to  it. 

2.  That  under  the  facts  in  the  case  applicant  was  an  employe 
within  the  employ  of  the  moving  and  storage  company  notwith- 
standing the  fact  that  he  did  his  work  on  the  streets  under  the 
direction  of  the  ward  boss. 

Applicant  had  been  in  the  employ  of  the  moving  and  stor- 
age company  as  a  teamster  doing  general  teaming  work  con- 
nected with  the  moving  and  storage  of  goods  and  such  other 
teaming  as  he  was  from  time  to  time  directed  to  do.  At 
the  time  of  the  injury,  he  was  working  with  his  team  on  a 
certain  street  in  the  city  of  Detroit,  hauling  away  "sweep- 
ings" under  the  direction  of  the  ward  boss.  The  nature  of  the 
work  and  the  order  under  which  Robinson  was  acting  re- 
quired him  to  move  teams  standing  in  the  street  in  order 
to  get  all  of  the  piles  of  dirt  or  sweepings  as  they  went  along. 
Shortly  before  he  was  injured,  he  moved  a  team  which  was 
standing  in  the  street,  against  the  protest  of  its  driver,  who 
became  angry  and  used  abusive  language.  He  then  proceeded 
to  pick  up  the  dirt  and  while  so  engaged  the  driver  of  the 
team  which  he  had  moved  came  up  behind  and  struck  him 
over  the  head  with  a  pick-hammer  inflicting  the  injuries  com- 
plained of. 

It  seems  clear  from  the  evidence  that  applicant  was  an 
employe  of  the  moving  and  storage  company  within  the 
meaning  of  the  Workmen's  Compensation  Law.  The  company 
was  his  general  employer  and  directed  him  where  to  work 
and  could  call  him  off  from  the  city  job  at  any  time.  Each 
day  after  his  work  for  the  city  was  finished  he  was  required 
to  take  his  team  to  the  office  of  the  company  for  further 
directions,  and  frequently  required  to  haul  loads  and  do  jobs 
for  the  company  after  finishing  his  day's  work  on  the  streets. 
The  fact  that  he  was  hauling  sweepings  for  the  city  and  while 
so  doing  was  under  the  direction  of  the  ward  boss  does  not 
change  the  character  of  the  employment.  It  was  essentially 
the  same  as  if  lie  was  hauling  garbage  or  material  for  any 
other  person  having  work  of  that  character  to  do.  The  busi- 
59 


466  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ness  of  the  company  was  handling  and  hauling  material  for 
others,  such  work  being  done  generally  in  accordance  with  the 
wishes  of  the  persons  owning  the  material  and  under  such 
orders  and  directions  as  they  desired  to  give.  This  case  dif- 
fers from  Kennelly  v.  Stearns  Salt  &  Lumber  Company,  as 
in  that  case  the  relation  of  employer  and  employe  was  tem- 
porarily and  completely  severed  by  the  command  of  the  State 
Fire  Warden.  Kennelly  was  drafted  into  the  service  of  the 
State  by  such  order  and  entirely  taken  out  of  his  regular 
employment.  In  the  Kobinson  case,  the  authority  and  con- 
trol of  his  employer  continued  without  interruption,  while 
in  the  Kennelly  case  such  authority  and  control  was  entirely 
extinguished  and  so  remained  until  the  man  was  discharged 
from  further  duty  by  the  Fire  Warden. 

Did  the  injury  arise  out  of  and  in  the  course  of  the  em- 
ployment? It  is  clear  that  it  arose  in  the  course  of  appli- 
cant's employment,  it  having  occurred  while  he  was  engaged 
regularly  in  his  work.  The  remaining  question  is  whether 
it  resulted  from  one  of  the  dangers  incident  to  such  employ- 
ment. His  work  involved  the  moving  of  teams  where  it  was 
necessary  in  order  to  get  at  the  sweepings,  and  this  part  of 
the  work  caused  him  to  incur  the  possible  danger  of  coming 
in  conflict  with  the  drivers  of  some  of  these  teams  and  possi- 
ble reprisals  such  as  occurred  in  this  case.  We  think  it 
fairly  appears  that  the  risk  of  injury  from  irrate  drivers  of 
teams  so  moved  in  the  work  was  one  that  arose  out  of  his 
employment.  The  case  In  Re  Reithel,  109  N.  E.  Rep.  951, 
decided  by  the  Supreme  Court  of  Massachusetts  strongly  sus- 
tains this  view.  In  the  Reithel  case  it  was  the  duty  of  the 
deceased  employe  to  order  from  his  master's  premises  any 
person  who  entered  without  permission,  and  in  discharging 
this  duty  he  was  shot  and  killed  by  one  who  resented  his 
action  in  causing  him  to  remove  from  the  premises.  In  pass- 
ing upon  the  question  the  Court  say: 

"An  element  inherent  in  the  performance  of  the  duty  of  excluding 
trespassers  from  property  and  mischief-makers  from  the  company  of 


KUNZE  vs.  DETROIT  SHADE  TREE  COMPANY.  467 

employes,  is  that  there  may  be  some  degree  of  violence  encountered. 
The  precise  form  which  that  risk  may  take  is  not  of  consequence.  Its 
unexpectedness  and  gravity  is  not  the  test.  *  *  That  murder  resulted 
instead  of  a  broken  bone  is  of  slight,  if,  indeed,  it  is  of  any  signifi- 
cance. This  injury  was  one  to  which  the  employe  was  exposed  by 
reason  of  his  employment,  and,  but  for  the  special  duty  imposed  on 
him  respecting  Bombard,  he  would  not  have  been  in  the  way  of  re- 
ceiving it.  The  causative  danger  was  peculiar  to  his  work.  It  was 
incidental  to  the  character  of  the  employment  and  not  independent  of 
the  relation  of  master  and  servant.  Although  unforeseen  and  the 
consequence  of  what  on  this  record  appears  to  have  been  a  crime  of 
the  highest  magnitude,  yet  now,  after  the  event,  it  appears  to  have 
had  its  origin  in  a  hazard  connected  with  the  employment  and  to 
have  flowed  from  that  source  as  a  rational  consequence." 

The  award  of  the  committee  on  arbitration  will  be  reversed 
and  compensation  granted. 


SUPREME  COURT. 

AUGUSTA  KUNZE, 

Applicant, 
vs. 
DETROIT  SHADE  TREE  COMPANY, 

Respondent. 

EVIDENCE — REASONABLE  INFERENCE — STREET  TRAFFIC — ARISING  OUT  OF. 
Applicant's  husband,  Frederick  Kunze,  was  in  the  employ  of 
respondent  as  foreman,  his  duties  requiring  him  to  go  from  job 
to  job  about  the  city.  Having  completed  his  inspection  on  one 
job  about  nine  o'clock  in  the  morning  of  July  18,  1914,  he  left  the 
work  in  charge  of  another  employe  and  started  to  another  part  of 
the  city,  where  it  is  claimed  that  he  was  to  inspect  another  job  for 
his  employer.  While  so  traveling  he  was  struck  and  injured  by 
an  automobile  and  died  on  the  following  day. 

HELD:  1.  That  the  performance  of  his  duties  in  supervising  dif- 
ferent jobs  of  work  required  him  to  travel  from  one  to  the  other, 
using  such  means  of  locomotion  as  he  might  deem  desirable; 


468  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

and  that  it  is  to  be  reasonably  inferred  from  the  evidence  that 
when  the  injury  occurred  he  was  about  to  take  a  car  to  go  to 
another  locality  to  inspect  work  for  his  employer. 

2.  That  where  an  employe  in  the  course  of  his  employment  is 
compelled  to  travel  about  the  streets  as  in  this  case,  the  danger  of 
being  struck  by  street  cars,  automobiles,  or  general  traffic  is  prop- 
erly held  to  arise  out  of  the  employment.  (Hopkins  vs.  Michigan 
Sugar  Company  distinguished.) 


Certiorari  to  Industrial  Accident  Board. 


Proceedings  by  Augusta  Kunze  against  the  Detroit  Shade 
Tree  Company  under  the  Workmen's  Compensation  Act  for 
compensation  for  the  death  of  her  husband.  Compensation 
was  awarded  by  the  Industrial  Accident  Board,  and  respond- 
ent brings  certiorari.  Affirmed. 

E.  D.  Alexander,  of  Detroit,  Attorney  for  applicant. 
Thos.  M.  Cotter,  of  Detroit,  Attorney  for  respondent. 

KUHN,  J.  This  case  is  brought  here  by  cretiorari  to  review 
an  award  made  by  the  State  Industrial  Accident  Board. 

Frederick  Kunze,  whose  widow  is  the  claimant  herein,  was 
employed  by  the  Detroit  Shade  Tree  Co.,  the  defendant,  as 
a  tree  trimmer  and  planter.  Having  been  with  the  defendant 
company  for  about  two  years,  on  July  18,  1914  he  was  em- 
ployed as  a  foreman;  and  in  the  course  of  this  employment  it 
was  his  duty  to  go  from  job  to  job  about  the  city.  On  the 
day  aforementioned  he  had  inspected  a  job  on  Virginia  Park, 
a  street  in  the  city  of  Detroit,  and  having  completed  this  in- 
spection at  about  9  o'clock  in  the  morning  he  left  the  work  in 
charge  of  another  employee  and  started  east  on  Virginia 
Park  to  the  intersection  of  Woodward  Avenue,  where  it  is  to 
be  reasonably  inferred  from  the  evidence  that  he  was  about 
to  take  a  car  to  inspect  another  job  north  of  Virginia  Park 
at  the  corner  of  Josephine  Avenue  and  Woodward  Avenue ; 
and  it  also  appears  that  there  was  another  job  for  inspection 


KUNZE  vs.  DETROIT  SHADE  TREE  COMPANY.  469 

at  the  corner  of  Mount  Vernon  and  John  R.  streets,  which 
was  also  north  of  Virginia  Park.  While  at  the  intersection 
of  Virginia  Park  and  Woodward  Avenue  he  was  knocked 
down  by  an  automobile,  seriously  injured,  and  died  the  fol- 
lowing day. 

It  is  the  contention  of  the  appellant  that  there  is  no  evi- 
dence in  the  record  that  the  deceased  was  at  the  time  of 
his  death  engaged  in  any  business  for  his  employer.  Mr.  Al- 
fred Gibson,  the  president  of  the  defendant  company,  was 
sworn  and  testified  as  to  the  character  of  the  employment. 
It  appears  from  his  testimony  that  the  deceased  was  employed 
by  the  week,  and  he  stated  that  in  the  summer  time  "He  went 
around  trimming  trees,  doing  tree  surgery  work,  taking  down 
trees,  and  so  on,  with  other  men  in  my  employ  that  he  had 
charge  of."  He  also  testified  that  at  the  time  of  his  injury 
the  deceased  had  on  his  person  a  list  of  places  to  go,  one 
after  the  other,  and  stated  that  he  had  finished  his  work  on 
Virginia  Park. 

We  think  it  is  clear  from  the  record  that  the  employment  of 
the  deceased  was  to  go  from  place  to  place  to  trim  trees,  and 
that  in  the  discharge  of  those  duties  it  was  not  only  neces- 
sary for  him  to  supervise  the  work  but  it  was  necessary,  in 
the  course  of  his  employment,  to  proceed  from  one  job  to 
the  other,  adopting  such  means  of  locomotion  as  he  might 
desire. 

It  is  strongly  urged  by  counsel  for  appellant  that  the  death 
of  the  deceased  was  not  due  to  any  accident  "arising  out  of 
and  in  course  of  his  employment,"  and  that  there  was  no 
causal  connection  between  the  employment  and  the  injury, 
and  in  support  of  this  contention  the  recent  decision  of  this 
court  in  Hopkins  v.  Sugar  Co.,  184  Mich.  87,  is  relied  upon. 
In  the  opinion  in  that  case  Mr.  Justice  Steere,  speaking  for 
the  Court,  quoted  from  the  rule  announced  by  the  Massa- 
chusetts court,  in  which  it  was  stated: 

"If  the  injury  can  be  seen  to  have  followed  as  a  natural  incident  of 
the  work  and  to  have  been  contemplated  by  a  reasonable  person 


470  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

familiar  with  the  whole  situation  as  a  result  of  the  exposure  occa- 
sioned by  the  nature  of  the  employment,  then  it  arises  'out  of  the 
employment.  But  it  excludes  an  injury  which  cannot  fairly  be  traced 
to  the  employment  as  a  contributing  proximate  cause,  and  which 
comes  from  a  hazard  to  which  the  workman  would  have  been  equally 
exposed,  apart  from  the  employment.  The  causative  danger  must  be 
peculiar  to  the  work  and  not  common  to  the  neighborhood.  It  must 
be  incidental  to  the  character  of  the  business  and  not  independent  of 
the  relation  of  master  and  servant.  It  need  not  have  been  foreseen 
or  expected,  but  after  the  event  it  must  appear  to  have  had  its  origin 
in  a  risk  connected  with  the  employment  and  to  have  flowed  from 
that  source  as  a  rational  consequence. 

Being  clearly  of  the  opinion  that  the  record  warrants  the 
conclusion  that  at  the  time  of  the  injury  the  deceased  was 
within  the  ambit  of  his  employment,  we  also  think  that  it  is 
a  justifiable  conclusion  that  the  accident  can  be  fairly  traced 
to  his  employment  as  a  contributing  and  proximate  cause. 
It  is  true  that  in  going  from  one  place  to  another,  as  was  his 
duty,  he  naturally  was  compelled  to  assume  risks  not  in  any- 
wise connected  with  the  trimming,  planting,  and  treating  of 
shade  trees.  But  his  employment  extended  further  than  this 
and  necessarily  obliged  him  in  the  discharge  of  his  duties  to 
go  from  place  to  place,  and  in  so  doing  to  assume  the  risks 
of  traffic  upon  the  streets.  Where  employes  are  compelled 
.during  the  course  of  their  employment  to  travel  about  the 
streets  it  does  not  seem  to  us  to  be  unreasonable  to  say  that 
the  danger  of  being  struck  by  street-cars,  automobiles,  and 
traffic  of  every  description  should  be  taken  account  of. 

We  think  it  must  be  said  that  the  very  nature  of  the  occu- 
pation of  the  deceased  itself  exposed  him  to  the  unusual  risk 
and  danger  of  an  accident  of  this  nature,  and  believe  that 
the  instant  case  is  readily  distinguishable  from  Hopkins  v. 
Sugar  Co.,  supra,  where  this  court  said  that: 

"No  direct  causal  relation  is  claimed  in  the  particular  that  the 
nature  of  the  business  of  manufacturing  sugar  in  itself  exposes  its 
employes  to  unusual  risk  or  danger  of  accident  of  this  nature." 

It  appears  that  in  that  case  the  deceased  at  the  time  of 
the  accident  had  finished  his  duties  of  the  day  and  had  re- 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  471 

turned  safely  to  his  home  city,  Saginaw,  and  was  injured  be- 
cause of  slipping  on  the  ice  while  passing  on  foot  along  a 
highway.  In  this  case  the  deceased  received  his  injury  dur- 
ing the  hours  of  employment  while  actively  engaged  in  per- 
forming work  for  his  master  in  accordance  with  duties  im- 
posed upon  him  by  his  employment.  See  Beaudry  v.  Watkins, 
23  D.  L.  N.  378. 

We  are  of  the  opinion  that  the  order  and  award  of  the 
Industrial  Accident  Board  should  be  and  is  hereby  affirmed. 


SUPREME  COURT. 

SARAH  TUTTLE, 

Applicant, 
vs. 
EMBURY-MARTIN  LUMBER  COMPANY, 

and 

LUMBERMEN'S  MUTUAL  CASUALTY  COMPANY, 
Respondents. 

LOGGING — INDEPENDENT  CONTRACTOR. 

Applicant's  husband,  Ephriam  Tuttle,  was  killed  while  hauling  logs 
for  respondent  lumber  company  from  the  skidway  to  the  mill.  He 
was  to  be  paid  $2.00  per  thousand  for  hauling  the  logs.  The 
hauling  was  along  a  private  road  built  and  maintained  by  the 
lumber  company,  and  his  was  one  of  a  number  of  teams  engaged 
in  the  work.  The  contract  did  not  provide  that  he  should  haul 
any  particular  logs  or  any  specific  amount,  and  the  manner  of 
doing  the  work  and  the  control  was  practically  the  same  as  the 
men  and  teams  employed  by  the  company  in  this  work  by  the  day 
or  month. 

HELD:  1.  That  deceased  was  not  an  independent  contractor,  but 
an  employe  of  the  company. 


472  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Certiorari   to   the   Industrial  Accident  Board. 


Proceeding  by  Sarah  Tuttle  against  the  Embury-Martin 
Lumber  Company  under  the  Workmen's  Compensation  Act 
for  compensation  for  the  death  of  her  husband.  Compensa- 
tion was  awarded  by  the  Industrial  Accident  Board,  and  re- 
spondents bring  certiorari.  Affirmed. 

James  F.  Shepherd,  of  Cheboygan,  Attorney  for  applicant. 
Adams,  Crews,  Bobb  &  Wescott,  Attorneys  for  respondents. 

STONE,  C.  J.  The  question  involved  in  this  case  is  whether 
Ephriam  Tuttle,  the  deceased  husband  of  Sarah  Tuttle,  the 
applicant,  was  an  independent  contractor,  or  an  employe  with- 
in the  provisions  of  the  Workmen's  Compensation  Act.  The 
Industrial  Accident  Board  found  that  his  relation  was  that 
of  employe,  and  from  that  finding  the  respondents  have 
brought  the  case  here  by  certiorari. 

Ephriam  Tuttle,  for  whose  death  applicant  claims  compen- 
sation, was  engaged  in  hauling  logs  for  Embury-Martin  Lum- 
ber Company,  near  Cheboygan,  on  January  8,  1915,  and  met 
his  death  by  being  thrown  from  a  load  of  logs  while  he  was 
driving-  the  team  drawing  the  load  between  the  skidway, 
where  the  logs  were  loaded,  and  the  mill,  where  they  were  to 
be  delivered.  Tuttle  was  working  for  the  company  under  the 
following  agreement,  as  testified  to,  on  direct  examination, 
by  E.  L.  Slade,  woods  superintendent  of  the  company: 

"Mr.  Tuttle  came  to  the  office  in  the  afternoon — I  can't  tell  you  the 
date — it  was  in  the  neighborhood  of  ten  days  or  two  weeks  before 
this  accident  occurred — and  wanted  to  haul  logs,  and  he  wanted  to 
know  how  we  were  hiring  and  I  told  him.  I  told  him  we  had  all  the 
teams  by  the  month  that  we  could  use,  on  account  of  our  barn  room — 
our  barn  was  full  and  was  hired  ahead.  He  said  he  could  stay  at 
home  and  haul  by  the  thousand,  and  I  hired  him  to  haul  by  the  thou- 
sand, at  two  dollars  a  thousand,  and  we  were  to  furnish  the  sleighs, 
and  there  was  a  certain  pair  of  sleighs  that  the  company  had  that  he 
had  hauled  on  the  winter  before,  that  had  a  short  tongue,  that  he 
wished  to  use,  and  he  came  to  town  and  brought  those  sleighs  back 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  473 

with  him.  He  used  those  sleighs  one  day,  on  the  Monday  before  *  *  * 
Later  in  the  week  Mr.  Tuttle  called  me  up  by  phone.  He  fixed  our 
telephone  line — the  wind  blew  it  down,  blew  a  tree  across  it  or  some- 
thing. Anyway,  he  fixed  the  line  up  voluntarily;  he  done  it  of  his  own 
accord,  but  he  received  his  pay  for  it  from  the  office;  I  guess  he  got 
some  tobacco  and  things  that  the  clerk  gave  him  for  his  services.  I 
guess  he  was  coming  over  to  the  office  on  purpose  to  .see  about 
hauling." 

Q.     "What  was  the  conversation  over  the  telephone?" 

A.  "He  wanted  to  know  if  he  could  start  hauling  again,  and  I  told 
him  yes,  to  start  on  in  the  morning." 

Q.     "When  was  that?" 

A.     "That  was  the  evening  of  the  7th." 

Q.     "Was  that  all  that  was  said  over  the  phone?" 

A.  "That  is  all  I  remember  being  said.  It  was  a  very  short  con- 
versation." 

Q.  "Now,  when  hauling  was  done  for  you  by  the  thousand  feet, 
was  it  done  on  any  particular  days?" 

A.     "No,  it  was  any  day  they  are  a  mind  to  come  after  a  load." 

Q.     "Or  with  any  regularity  at  all?" 

A.     "No,  they  were  loaded  in  turn  as  they  came." 

Q.  "Were  there  any  specifications  made  on  a  man's  haul  on  any 
particular  day?" 

A.     "No  sir." 

Q.  "Did  you  determine — did  the  Embury-Martin  Lumber  Company 
or  anybody  in  its  behalf  determine  the  size  of  his  loads?" 

A.     "No  sir." 

Q.     "Who  did?" 

A.     "He  did  himself." 

Q.  "Does  the  Embury-Martin  Lumber  Company  determine  the  size 
of  the  loads  hauled  by  your  employes?" 

A.     "It  is  simply  up  to  the  foreman  and  condition  of  his  roads." 

Q.  "Do  you  give — does  the  Embury-Martin  Lumber  Company  or 
any  of  its  employes  give  persons  who  are  hauling  by  the  thousand 
feet  any  directions  as  to  how  they  shall  haul — as  to  the  manner  of 
their  hauling — as  to  how  rapidly  they  shall  haul,  or  anything  at  all?" 

A.     "One  trip  a  day.    We  haul  from  that  job  one  trip  a  day." 

Q.     "You  mean  that  is  all  you  can  haul?" 

A.     "That  is  all  you  can  haul — one  trip  a  day." 

Q.  "But  you  don't  have  any  requirements  by  which  they  haul  one 
trip  a  day?" 

A.     "No  sir." 

Q.     "Or  any  particular  number  of  trips?" 

A.     "No  sir." 

Q.     "You  simply  tell  them  to  haul  from  the  skid  way?" 


474         "  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

A.     "To  the   mill." 

Q.     "To  the  mill?" 

A.     "Yes  sir." 

Q.  "These  people  who  haul  by  the  thousand  feet  handle  the  logs  at 
that  end  to  where  they  are  hauling,  did  they?" 

A.     "Yes  sir." 

Q.  "They  come  and  go  where  they  please  and  haul  such  loads  as 
they  please?" 

A.     "Yes  sir." 

Q.     "When  are  they  paid?" 

A.     "They  are  paid  whenever  they  call  for  their  money  at  the  office." 

Q.     "At  any  time?" 

A.  "The  load  is  scaled  there  and  they  are  given  a  slip  or  scale  sheet 
and  they  can  get  their  money  then  or  let  it  stand  for  a  week.  They 
can  have  it  any  night  after  it  is  scaled." 

Q.     "That  is  the  practice  is  it?" 

A.     "That  is  the  practice." 

Upon  cross-examination  the  following  testimony  was  given 
by  this  witness: 

Q.  "Did  you  employ  Mr.  Tuttle  to  haul  any  particular  number  of 
thousand  feet?" 

A.     "No  sir." 

Q.  "Did  you  hire  him  to  haul  any  designated  lot  of  logs,  I  mean, 
outside  of  the  general  mass  that  you  had  out  there?" 

A.     "No  sir." 

Q.  "He  didn't  agree  that  he  would  haul  one  hundred  thousand  or 
fifty  thousand,  or  any  particular  quantity?" 

A.     "No  sir;  we  didn't  let  any  jobs  of  any  kind  in  that  way." 

Q.     "Whose  employes  load  the  sleighs?" 

A.     "Embury-Martin  Lumber  Company's." 

Q.  "What  would  he,  Mr.  Tuttle,  be  doing — I  am  taking  him  as  one 
hauling  by  the  thousand — what  would  he  be  doing  as  the  logs  were 
loading?" 

A.  "We  load  the  sleighs  with  a  jammer  and  they  use  the  team  on 
the  cable  at  the  jammer." 

MR.  KENNEDY:     "Whose  team  do  you  use?" 

A.     "The  team  we  are  loading — whosever  team  is  on  the  sleigh." 

Q.     "Did  you  use  Mr.  Tuttle's  when  he  was  there?" 

A.     "Yes  sir." 

MR.  SHEPHERD:  "So  that  Mr.  Tuttle  would  be  busy  while  the 
sleigh  was  loading,  then?" 

A.  "Yes,  his  team  would  be  busy,  and  he  would  be  busy,  yes.  The 
team  they  place  on  the  sleighs — their  own,  yes." 

Q.     "He  would  be  handling  the  team?" 


' 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  475 

A.     "Yes  sir." 

Q.  "Who  fastens  the  chains  around  the  logs  and  sees  that  they  are 
secure  on  the  load?" 

A.     "The  laborers." 

Q.     "Embury-Martin  Lumber  Company's  employes?" 

A.     "Yes  sir." 

Q.     "Mr.  Liddy,  for  instance?" 

A.     "Yes  sir,  there  is  three  men  in  the  gang." 

Q.  "How  many  men  usually  ride  on  a  load  down  town — I  mean  in 
the  course  of  business — I  dont  mean  anybody  that  might  catch  on?" 

A.     "One  man,  the  driver." 

Q.  "Is  there  any  difference  in  that  regard  as  between  men  who  are 
paid  by  the  thousand  and  the  men  who  work  by  the  day?" 

A.     "In  regard  to  how  many  ride?" 

Q.     "Yes." 

A.     "Why  no.    That  is  his  own  option." 

Q.  "You  said  the  man  handled  the  haul  himself  after  the  load  was 
on  the  sleighs?" 

A.  "Yes  sir,  after  he  left  the  skidway — after  he  got  on  his  load, 
why  that  was  his  load  to  go  with — he  handled  that  to  the  mill. 

Q.  "That  was  so  of  those  who  hauled  by  the  thousand  as  well  as 
those  that  worked  by  the  day?" 

A.     "Yes  sir." 

Q.  "So  far  as  that  was  concerned  there  wasn't  any  difference  be- 
tween the  two  classes  of  men?" 

A.     "Not  in  regard  to  handling  the  load." 

*  *  *  *  * 

Q.  "Let  me  ask  this:  Was  this  haul  on  which  he  was  found  dead 
on  one  of  the  Embury-Martin  logging  roads?  Was  that  a  road  that 
was  built  by  them?'' 

A.     "Yes." 

Q.     "For  the  purpose  of  hauling  their  logs  from  camp  to  the  mill?" 

A.     "Yes." 

Q.     "At  Cheboygan?" 

A.     "Yes  sir." 

Q.     "It  was  not  a  public  highway?" 

A.     "No  sir." 

Q.  "Was  there  any  other  place  for  men  to  haul  logs  from  your 
camps,  except  the  mill  at  Cheboygan?" 

A.     "No  sir." 

Q.  "And  you  didn't  haul  logs  from  any  other  spot  to  the  mill,  except 
from  those  camps?" 

A.     "No  sir." 

The  man  who  loaded  the  sleighs,  and  was  called  the  "top 
londer,"  testified,  among  other  things,  as  follows:  . 


476  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Q.     "Did  you  put  any  logs  on  the  sleighs  of  Mr.  Tuttle?" 

A.     "I  did." 

Q.     "When  was  that?" 

A.     "The  8th  of  January — the  morning  of  the  8th." 

Q.  "Do  you  know  how  many  logs — how  many  loads  of  logs  he 
hauled  that  day?" 

A.     "That  was  his  first  trip  that  he  made  to  our  gang." 

Q.     "Who  directed  him  where  to  get  the  logs?" 

A.  "I  couldn't  tell  you.  I  presume  the  foreman  did  though,  it 
would  be  his  place  to." 

Q.  "Was  the  team  brought  up  to  the  loads,  or  did  you  roll  the  logs 
to  the  team?" 

A.  "Well,  the  sleighs  were  set  there,  and  what  didn't  roll  we 
dragged  up." 

Q.     "The  logs  were  in  a  certain  place?" 

A.     "They  were  on  a  skidway,  yes  sir." 

Q.     "Whose  logs  were  they?" 

A.     "Embury-Martin  Company's." 

Q.     "Do  you  know  who  they  were  put  on  the  skidway  by?" 

A.     "I  do  not,  they  were  skidded  before  I  went  there." 

*  *  *  *  * 

Q.     "Mr.  Tuttle  told  you  when  to  stop  loading,  didn't  he?" 

A.     "Sure." 

Q.     "That  is,  he  said  when  he  had  enough  logs?" 

A.     "Certainly." 

Q.  "There  were  some  men  working  there  by  the  month  and  others 
working  ha,uling  by  the  thousand,  were  there  not?" 

A.     "Yes  sir." 

Q.  "There  were  about  twenty-one  or  twenty-two  teams  there  at 
that  time  hauling  by  the  thousand,  weren't  there?" 

A.     "I  couldn't  say  for  that." 

Q.     "There  were  quite  a  number?" 

A.     "Quite  a  number  of  teams?" 

Q.  "They  wouldn't  necessarily,  with  any  regularity,  would  they, 
that  is,  some  might  come  one  day  and  then  not  come  for  a  day  or  so, 
and  then  come  another  day?" 

A.     "Some  that  way,  and  some  wouldn't." 

Q.     "That  is  some  would  come  on  off  and  on?" 

A.     "Yes,   some  of  them  would." 

Q.  "And  those  that  hauled  by  the  thousand  would  determine  for 
themselves  how  many  logs  they  would  haul,  would  they  not?" 

A.     "Yes,  and  also  the  whole  of  them  tried — 

Q.     "Eh?" 

A.     "The  most  of  them." 

MR.  KENNEDY:    "That  is  you  wouldn't  load  more  on  one  team  if—" 

A.     "If  they  didn't  want  to  take  it,  I  wouldn't  try  it." 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  477 

Q.  "Well,  it  is  true  isn't  it,  that  if  some  one  who  was  hauling  by 
the  day  came  up  with  a  sleigh,  or  someone  who  was  employed  by  the 
month  or  by  the  day,  he  wouldn't  be  allowed  to  go  off  with  just  a 
small  load  would  he,  with  a  few  logs  on?" 

A.  "If  I  will  be  permitted  I  would  like  to  explain,  I  can  explain  it 
better  than  you  can  ask  the  questions." 

Q.     "All  right,  go  on." 

A.  "The  morning  he  came  there,  being  the  first  trip —  the  foreman 
told  me  to  put  on  a  certain  number  of  logs — I  asked  him  whether  he 
was  hauling  by  the  thousand  or  by  the  day,  and  he  told  me  he  didn't 
know  until  he  saw  Mr.  Slade;  so  I  put  on  logs  until  I  got  the  sleigh 
loaded." 

MR.  KENNEDY:    "They  all  got  their  loads  at  the  same  place?" 

A.  "No,  we  had  out  other  teams  that  morning,  there  was  other 
teams  to  the  other  gangs." 

Q.  "The  logs  were  all  from  the  same  land  and  from  the  same 
company?" 

A.     "Yes  sir." 

It  further  appeared  that  Mr.  Tuttle  did  not  live  in  the  camp 
as  did  the  other  men,  but  lived  at  home.  He  fed  and  cared 
for  his  own  horses.  The  load  tipped  over  a  short  distance 
from  the  skidway,  and  deceased  was  crushed  between  two 
logs  and  died  from  his  injuries  on  the  same  day. 

The  Embury-Martin  Lumber  Company k  had  three  classes 
of  men  hauling  logs  from  their  camp  to  the  mill  at  Cheboygan. 

The  first  class  used  company  teams  and  the  men  were  paid 
by  the  month ;  the  second  class  used  their  own  teams,  were 
boarded  at  the  camp  and  were  also  paid  by  the  month;  the 
third  class  used  their  own  teams  and  company  sleighs,  and 
were  paid  by  the  number  of  thousand  feet  of  logs  they  hauled 
to  Cheboygan. 

As  already  appears,  the  work  of  hauling  logs,  at  the  time 
and  place  where  Tuttle  was  employed,  consisted  of  loading  the 
logs  upon  the  sleighs,  which  was  done  by  a  loading  crew  at 
the  skidway  under  the  direction  of  the  foreman  or  top  loader. 
The  logs  were  placed  on  the  sleighs  by  an  apparatus  called 
a  "jammer,"  which  consisted  principally  of  a  wire  cable  run- 
ning through  a  block.  A  sleigh  could  only  be  loaded  at  a 
skidway  where  a  jammer  was  set.  The  team  on  the  sleigh 


478  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

to  be  loaded  was  hitched  to  one  end  of  the  cable  and  the  other 
to  the  logs  to  be  loaded.  The  team  was  then  handled  and 
driven  by  the  driver,  whether  working  by  the  month  or  by  the 
thousand,  tinder  the  direction  of  the  foreman  or  top  loader 
in  charge  of  the  loading  crew.  The  logs  were  then  fastened 
on  the  sleighs  by  the  loading  crews.  The  driver  then  drove 
to  Cheboygan  with  the  load  of  logs.  No  one  accompanied  the 
driver  on  the  road  to  the  mill.  Where  the  injury  occurred 
Mr.  Tuttle  was  using  a  road  built  and  maintained  by  the 
Embury-Martin  Lumber  Company.  At  the  mill  the  driver 
placed  the  load  of  logs  wherever  directed  by  the  company's 
foreman.  The  logs  were  unloaded  by  an  unloading  crew.  The 
person  hauling  by  the  thousand  did  nothing  with  respect  to 
unloading  unless  he  so  desired.  Sometimes  he  assisted  in 
unloading,  but  it  was  not  required  of  him.  The  manner  in 
which  the  work  of  transporting  logs  from  the  skid  ways  at  the 
camps  to  the  mill  was  the  same,  whether  the  driver  was  paid 
by  the  month  or  by  the  thousand. 

Neither  Mr.  Tuttle,  nor  those  Avho  hauled  by  the  thousand, 
agreed  to  haul  any  particular  kind,  quantity  or  designated 
load  of  logs.  They  took  logs  from  the  same  general  mass 
which  the  others  hauled  from. 

The  vice-president  of  the  company  testified,  among  other 
things,  that  the  foreman  could  prevent  a  man  working  by  the 
thousand  from  taking  a  load  if  he  so  desired.  Nothing  was 
specifically  said  to  Mr.  Tuttle  when  he  was  employed  about 
any  custom  among  those  who  hauled  by  the  thousand,  nor 
was  there  any  evidence  that  he  knew  of  any  custom. 

The  appellants  contend  that  the  conditions  surrounding 
Tuttle's  relation  with  the  Embury-Martin  Lumber  Company 
contain  eight  elements  which  marked  him  as  an  independent 
contractor,  and  not  an  employe;  and  that  in  cases  of  this 
character  the  courts  of  this  State,  and  of  England,  and  the 
Industrial  Boards  and  courts  in  the  United  States,  have  d< 
termined  that  a  man  in  Tuttle's  relationship,  as  defined  by 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  479 

these  eight  elements,  is  an  independent  contractor.    The  eight 
elements  are  as  follows: 

(1)  Furnishing  own  equipment — Tuttle  used  Ms  own  equip- 
ment, horses,  etc. 

(2)  Compensation   by   amount   of   work  done — Tuttle  re- 
ceived |2.00  per  thousand  for  the  logs  he  hauled. 

(3)  Control  of  Working  hours — Tuttle  worked  when  he 
wished  to  and  not  otherwise.     He  could  start  work  any  time 
of  the  day. 

(4)  Control  of  the  amount  of  work  done — Tuttle  could 
determine  the  size  of  the  loads  he  hauled. 

(5)  Control  of  the  manner  of  the  work — Tuttle  got  his 
logs  where  he  wished  and  was  under  no  control  while  hauling. 

(6)  Freedom   from   supervision — Tuttle   did   not   live   in 
camp  under  the  supervision  of  the  foreman  or  other  persons. 
He  did  not  have  to  unload  his  logs  as  did  the  employes  of 
the  company. 

(7)  Control   and   care  of   equipment.     Tuttle  controlled 
and  cared  for  his  own  team  and  equipment. 

(8)  Eight  to  hire  substitute  or  assistant.     Tuttle  could 
have  sent  a  substitute  or  another  man  with  another  team  if 
he  had  one. 

It  is  urged  by  appellants  that  the  distinction  of  the  com- 
mon law,  between  an  employe  and  an  independent  contractor 
exists  under  the  Workmen's  Compensation  Act  and  it  has 
been  so  held  in  other  jurisdictions,  citing  Massachusetts,  Cali- 
fornia, Illinois  and  rulings  of  State  Boards;  also  Curtis  v. 
Plumtree,  (Court  of  Appeals  of  England)  6  B.  W.  C.  C.,  87, 
and  the  following  Michigan  cases  are  also  cited: 

De  Forest  v.  Wright,  2  Mich.,  368; 

Riedel  v.  Moran,  Fitzsimmons  Co.,  103  Mich.,  262; 

Wright  v.  Big  Rapids  Door  &  Blind  Mfg.   Co.,  124 

Mich.,  91; 

Lenderiiik  v.  Village  of  Rockford,   i:>r>  Mich.,  531; 
Burns  v.  Michigan  Paint  Co.,  152  Mich.  613; 


480  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

McBride   v.   Jerry   Madden   Shingle  Co.,   173   Mich., 

248,  and 

numerous  cases  in  foreign  jurisdictions. 

The  appellee  calls  attention  to  Sec.  5,  Part  1  of  the  Work- 
men's Compensation  law  of  this  State,  which  provides  that 
the  following  shall  constitute  employers  subject  to  the  pro- 
visions of  the  act: 

"Every  person,  firm  and  private  corporation,  including  any  public 
service  corporation,  who  has  any  person  in  service  under  any  contract 
of  hire,  express  or  implied,  oral  or  written."  *  *  *  * 

The  appellee  further  contends  that  there  is  not  only  suffi- 
cient evidence  in  the  record  upon  which  the  Accident  Board 
could  properly  find  claimant's  husband  was  "in  service  under 
a  contract  of  hire,"  but  also  that  under  the  rules  of  law 
he  was  a  servant  as  distinguished  from  an  independent 
contractor;  that  the  testimony  of  Mr.  Slade,  the  woods  super- 
intendent, is  to  the  effect  that  there  was  a  contract  of  general 
employment.  The  following  Michigan  cases  are  cited  by  ap- 
pellee : 

Lewis  v.  Detroit,  etc.  Brick  Co.,  164  Mich.,  489; 
Ripley  v.  Priest,  169  Mich.,  383; 

and  the  following  authorities  are  cited  from  other  jurisdic- 
tions : 

Knicely  v.  W.  Va.  Midland  R.  E.  Co.,  17  L.  B.  A.  (N. 

S.)  370,  and  note; 
State  ex  rel.  Va.  &  Rainy  Lake  Co.  v.  District  Court, 

128  Minn.,  43;  150  N.  W.  211. 

The  opinion  in  the  last  cited  case  is  quoted  from  at  length. 

Appellee's  counsel  urges  that  the  eight  elements  set  up  by 
the  appellants  are  not  supported  by  the  record,  or  are  not 
controlling.  We  quote  from  appellee's  brief: 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  481 

(1)  "Furnished  own    equipment.     Tuttle  used   his   own  team   and 
company  sleighs.    Under  Lewis  v.  Detroit  Vitrified  Brick  Co.,  supra, 
and  State  ex  rel.  Virginia  &  Rainy  Lake  Co.  v  District  Court,  supra, 
this  factor  is  immaterial.     Furnishing   his  own  team  was  analagous 
to  the  laborer  who  used  his  own  lights  and  explosives  in  the  Lewis 
case,  and  the  woodsman  using  his  own  tools  in  the  Minnesota  case." 

(2)  "He  was    compensated  by  the   amount   of  work   done.    Piece- 
work does  not  constitute  the  laborer  who  does  it  an  independent  con- 
tractor.   Lewis  v.  Detroit  Vitrified  Brick  Co.,  and  State  etc.  v.  District 
Court,  supra;   Knicely  v.  W.  Va.  etc.  R.  R.  Co.,  17  L.  R.  A.,   (N.  S.) 
371;  Ripley  v.  Priest,  169  Mich.  383." 

(3)  "Control  of  own  working  hours.     This  is  not  true.     He  could 
only  work   when  and  where  the  jammers  were  set.     He  could  only 
haul  one  load  a  day  and  that  is  all  anyone  could  haul  from  the  camps 
to  the  mill  in  Cheboygan.     He  could  only  get  a  load  when  the  load- 
ing crew   gave  it  to  him,  and  they  could  refuse  him   a  load  if  the 
company  wished." 

(4)  "Control  of  the  amount  of  work  done.    See  Lewis  v.  Detroit 
Vitrified  Brick  Co.  and  the  other  cases  cited.     Like  any  other  laborer 
he  could  quit.    The  employer  could  also  discharge  him.    In  the  Lewis 
case  the  court  held  the  plaintiff  to  be  a  servant  notwithstanding  'They 
(the   laborers)   furnished  lights  and  explosives,  or  the  cost  .of  them,' 
and  were  generally  masters  of  the  time  and  the  efforts  they  should 
make.'  " 

(5)  "Control  of  the  manner  of  work.    The  statement  in  appellants' 
brief,  'Tuttle  got  his  logs  where  he  wished  and  was  under  no  control 
while  hauling,'  is  not  borne  out  by  the  record  as  to  getting  the  logs 
where  he  wished.     He  could  only  get  logs  at  the  skidways  where  the 
jammers   were   set.     He   did  not   control   the    manner  of  work    done. 
Embury-Martin    Lumber    Company's    woods    superintendent    testified: 

'Q.    And  where  they  loaded  was  under  your  direction   was  it?' 

'A.  Yes  sir,  they  couldn't  load  any  other  place  only  where  we  had 
our  jammers  set  to  load.' 

As  to  control  while  hauling  no  one  controlled  any  of  the  drivers 
either  by  the  month,  day  or  thousand,  except  when  loading  or  unload- 
ing. There  is  no  difference  in  this  respect  between  admitted  employes 
of  the  lumber  company,  paid  by  the  month,  and  Mr.  Tuttle. 

'You  said  the  man  handled  the  load  himself  after  the  load  was  on 
the  sleighs?' 

'A.  Yes  sir,  after  he  left  the  skidway — after  he  got  on  his  load, 
why  that  was  his  load  to  go  with — he  handled  that  to  the  mill.' 

'Q.  That  was  so  of  those  who  hauled  by  the  thousand  as  well  as 
those  that  worked  by  the  day?' 

'A.     Yes  sir. 

61 


482  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

'Q.     So  far  as  that  was  concerned  there  wasn't  any  difference  be- 
tween the  two  classes  of  men?' 

'A.     Not  in  regard  to  handling  the  load.'  " 

(6)  "Freedom   from   supervision.     This  is    not  true.     At  the  only 
points  where  drivers   came   in   contact  with  any  necessity  of  super- 
vision, they  were  controlled  and  directed.     They  could  only  get  loads 
where  the  jammers  were  set;  they  loaded  the  sleighs  with  their  own 
teams  under  the  direction  of  the  employer's  foreman  or  top  loader, 
the  employer's  servants  fastened  the  load  on  the  sleighs,  he  drove  over 
roads  built  and  maintained  by  the  employer  to  its  mills  at  Cheboygan, 
where  he  was  directed  where  to  place  the  load  for  unloading.     None 
of  the  drivers,  either  by  the  thousand  or  day  or  month  unloaded  or 
were   required  to  assist  in  unloading.     They  could  be  controlled  by 
the  power  of  the  employer  to  discharge.    There  is  no  testimony  in  the 
record  to  bear  out  the  statement  in  appellants'  brief:  'he  did  not  have 
to  unload  his  logs  as  did  the  employes  of  the  company,'  if  by  employes 
is  meant  drivers  by  the  month.     As  far  as  living  in   the  company's 
camps  are  concerned,  living  in  camps  or  out  of  them  does  not  bear 
on  the  question.     The  control  of  the  means  which  the  employer  has 
over  a  servant  does  not  go  to  the  extent  of  controlling  anything  but 
the  doing  of  the  work  which  he  has  been  engaged  to  do.    One  may  be 
and  is  a  servant  of  another  without  the  control  of  the  employer  over 
his  meals,  lodging  and  personal  conduct  outside  of  working  hours.    I 
have  failed  to  find  any  case  anywhere,  or  any  semblance  of  authority 
for  the  statement,  that  there  is  any  rule  or  law  that  control  of  any- 
thing except  work  itself  in  which  the  laborer  is  engaged,  has  any  bear- 
ing whatever  on  the  question.     As  far  as   doing  the  work  was  con- 
cerned,  that  is,  hauling  logs  to  Cheboygan  from  these  camps,  there 
was  no  difference  whatever  between  those  who  were  paid  by  the  day 
or  month  and  Mr.  Tuttle.    Both  were  employed  generally,  although  the 
rate  of  pay  was  different." 

(7)  "Tuttle  owned  the  team  he  used  and  as  owner  had  the  right 
to  manage  it  subject  to  the  direction  of  the  employer  while  doing  the 
employer's  work.     He  drove  the  team  in  loading  and  went  ahead  and 
backed  up  as  directed  by  his  employer's  foreman.     Any  pieceworker 
who  uses  his  own  tools  naturally  cares  for  them.     Tuttle's  tools  were 
a  team  of  horses." 

(8)  "Right  to   hire  substitute  or  assistant.     This  statement   that 
Mr.  Tuttle  could  have  sent  a  substitute  or  another  man  with  another 
team  is  not  borne  out  by  the  record  in  any  manner  whatsoever.     The 
contract  between  himself  and  the  employer  hereinbefore  stated  was  for 
Tuttle  to  haul  logs.     No  one  else  was  mentioned.     He,  himself,  per- 
sonally, with  his  team  was  hired  to  haul  logs.     He   asked  for  work 
and  it  was  given  to  him.    He  had  no  more  right  to  send  a  substitute 
or  employ  assistants  at  his  employer's  expense   than  a  ditch  digger 
has  who  sends  a  man  in  his  place.     If  the  employer  accepts  the  sub- 


TUTTLE  vs.  EMBURY-MARTIN  LUMBER  CO.  483 

stitute,  of  course  he  would  have  to  pay  him,  but  the  contract  gave 
Tuttle  no  such  privilege.  If  it  did,  however,  Tuttle  was  killed  and 
not  a  substitute  or  assistant.  The  testimony  in  the  record  that  some 
men  had  more  than  one  team  hauling,  or  brought  a  load  in  and  were 
paid  for  it,  is  beside  the  point.  In  one  instance  they  made  arrange- 
ments before  hauling  and  in  others  they  were  volunteers  whose  labor 
was  accepted  and  paid  for." 

In  the  recent  case  of  Gall  v.  Detroit  Journal  Co.,  158  N. 
W.,  36  we  had  occasion  to  examine  this  question,  and  many 
authorities  in  our  own  court  and  some  from  other  jurisdic- 
tions are  cited  in  the  opinion  of  Mr.  Justice  Person.  There  is 
a  vast  amount  of  learning  upon  this  subject.  In  the  exami- 
nation of  this  question  our  attention  has  been  called  to  more 
than  one  hundred  cases  in  other  jurisdictions.  The  copious 
note  to  Richmond  v.  Sitterding,  65  L.  R.  A.,  445,  and  the 
notes  to  Messmer  v.  Bell,  etc.  Co.,  133  Ky.,  19;  Vol.  19  Am. 
&  Eng.  Anno.  Cas.,  1,  and  Cochran  v.  Rice,  (S.  D.)  reported 
in  Am.  &  Eng.  Anno.  Cas.,  (1913-B)  at  page  570,  will  furnish 
an  abundance  of  authority  upon  the  subject. 

In  some  cases  much  stress  is  laid  upon  the  fact  that  the 
work  to  be  performed  is  of  an  indefinite  amount  subject  to 
discharge  and  control  in  that  regard.  Others,  whether  the 
employment  is  of  a  general,  independent  character,  like  that 
of  draymen  and  common  carriers,  becomes  the  controlling 
question.  We  are  of  the  opinion  that  the  test  of  the  relation- 
ship is  the  right  to  control.  It  is  not  the  fact  of  actual  in- 
terference with  the  control,  but  the  right  to  interfere  that 
makes  the  difference  between  an  independent  contractor  and 
a  servant  or  agent,  26  Cyc.,  1547. 

In  our  opinion  there  was  such  control  over  the  work  of 
Tuttle,  by  the  company,  as  makes  it  inconsistent  to  say  that 
Tuttle  was  an  independent  contractor. 

His  work  was  limited  by  the  right  of  the  company  to  termi- 
nate it  at  any  time,  and  it  was  for  no  definite  period,  or 
amount.  The  loading  and  unloading  were  under  control  of 
the  company,  both  as  to  time  and  place.  True,  he  was  in 
charge  of  his  team  while  going  from  the  skidway  to  the  mill, 


484  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

but  that  was  true  of  all  the  drivers,  whether  working  by  the 
month  or  the  thousand. 

The  most  that  can  be  said  for  the  respondents  is,  that  upon 
the  evidence  in  the  record,  it  might  be  for  a  jury  to  say,  un- 
der proper  instructions,  whether  the  company  participated 
and  directed  in  the  work  of  Tuttle  to  such  a  degree  that  the 
relation  of  master  and  servant  existed,  or  whether  he  was  an 
independent  contractor.  There  was  some  evidence  tending 
to  show  a  custom.  There  was  no  evidence  that  Tuttle  knew 
of  any  custom.  Such  evidence  was  admissible  only  on  the 
ground  that  the  parties  were  both  cognizant  of  it,  and  must 
be  presumed  to  have  made  their  engagement  with  reference 
to  it.  There  was  no  such  evidence. 

Pennell  v.  Transportation  Co.,  94  Mich.,  247. 

The  real  question  in  this  case  is,  what  was  the  relation 
which  Mr.  Tuttle  sustained  to  the  Embury-Martin  Lumber 
Company  ? 

In  our  opinion  he  was  a  person  in  service  under  employ- 
ment of  that  company,  and  comes  within  the  provisions  of 
the  Workmen's  Compensation  law.  Whether  or  not  the  re- 
lation of  master  and  servant  exists  in  a  given  case,  under 
oral  contract,  is  often  a  question  of  fact,  or  of  mixed  law 
and  fact,  and  it  is  to  be  proved  like  any  other  question.  In 
our  opinion  there  was  evidence  in  the  case  that  warranted 
the  Industrial  Accident  Board  in  reaching  the  conclusion 
which  it  did,  and  the  proceedings  of  that  board  must  be 
affirmed. 


RAMLOW  vs.  MOON  LAKE  ICE  CO.  485 


SUPREME  COURT. 

MYRTLE  RAMLOW, 

Applicant, 
vs. 
MOON  LAKE  ICE  COMPANY, 

and 

OCEAN  ACCIDENT  &  GUARANTEE  COR- 
PORATION, LTD., 

Respondents. 

PROXIMATE  CAUSE — DELIRIUM  TREMENS — INTENTIONAL  AND  WILFUL  MIS- 
CONDUCT. 

Applicant's  husband,  William  Ramlow,  was  injured  while  in  the 
employ  of  respondent  ice  company,  the  injury  consisting  of  a 
severe  fracture  of  two  bones  of  his  right  leg  just  above  the 
ankle.  Two  days  after  the  injury  he  suffered  an  attack  of  de- 
lirium tremens  and  died. 

HELD:  1,  That  the  fact  that  his  system  had  been  so  weakened 
by  intemperate  habits  that  it  was  unable  to  withstand  the 
effects  of  the  injury,  does  not  shift  the  proximate  cause  of  his 
death  from  the  injury  to  such  intemperate  habits. 

2.  That  his  failure  under  the  circumstances  of  the  case  to 
inform  the  attending  physician  that  he  was  a  drinking  man  did 
not  amount  to  intentional  and  wilful  misconduct. 


Certiorari  to  Industrial  Accident  Board. 


Proceeding  by  Myrtle  Ramlow  against  the  Moon  Lake  Ice 
Company  under  the  Workmen's  Compensation  Act  for  com- 
pensation for  the  death  of  her  husband.  Compensation  was 
awarded  by  the  Industrial  Accident  Board,  and  respondent 
brings  certiorari.  Affirmed. 

Hatch,  McAllister  &  Raymond,  of  Grand  Rapids,  Attor- 
neys for  applicant. 


486  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Klemhans,  Knappen  &  Uhl,  of  Grand  Rapids,  Attorneys 
for  respondents. 

BIRD,  J.  William  Ramlow,  husband  of  claimant,  was  an 
employe  of  the  defendant,  Moon  Lake  Ice  Company,  of  Grand 
Rapids.  On  June  3rd,  1914,  while  attempting  to  remove  a 
Imr  from  the  axle  of  one  of  the  company's  wagons,  he  slipped 
and  fell,  causing  a  severe  fracture  of  two  bones  in  his  right 
leg  just  above  the  ankle.  He  was  removed  to  the  hospital 
where  the  fracture  was  reduced  and  he  was  placed  in  bed. 
There  was  nothing  unusual  about  his  condition  until  the 
evening  of  June  5th,  w^hen  he  suffered  an  attack  of  delirium 
tremens,  and  died  on  the  following  morning.  Application 
was  made  by  the  widow  for  an  allowance,  and  the  same 
was  granted  at  the  rate  of  $6.40  a  week  for  300  weeks. 

(1)  Counsel  for  the  ice  and  insurance  companies  contend 
that  the  award  should  not  have  been  made  for  the  reason 
that  the  testimony  shows  that  the  attack  of  delirium 
tremens,  and  not  the  injury,  was  the  proximate  cause  of  his 
death.  The  record  contains  the  testimony  of  four  physicians 
who  appeared  to  be  qualified  to  speak  on  such  matters,  and 
they  gave  it  as  their  opinion  that  the  attack  of  delirium 
tremens  was  caused  by  the  injury;  further  that  it  was  not 
unusual  for  delirium  tremens  to  develop  about  sixty  hours 
after  an  injury,  when  the  secondary  shock  sets  in  with  pa- 
tients who  had  been  in  the  habit  of  using  alcoholic  liquors. 
Two  physicians  who  testified  for  the  defendants,  disagreed 
with  this  view,  but  the  record,  taken  as  a  whole,  is  very 
persuasive  that  the  deceased  would  not  have  developed  de- 
lirium tremens  when  he  did,  had  it  not  been  for  the  injury 
and  the  shock  which  followed  it.  The  fact  that  his  system 
had  been  so  weakened  by  his  intemperate  habit  that  it  was 
unable  to  withstand  the  effects  of  the  injury,  does  not  there- 
by shift  the  proximate  cause  of  death  from  his  injury  to 
his  intemperate  habit.  McCahill  v.  N.  Y.  Transportation 
Co.,  20  N.  Y.,  221. 


RAMLOW  vs.  MOON  LAKE  ICE  CO.  487 

It  is  said  by  counsel  that  this  case  is  similar  to  that  of 
McCoy  v.  Michigan  Screw  Company,  180  Mich.,  454.  The 
cases  are  dissimilar  in  the  material  respect,  that  in  the  case 
cited,  the  claimant  by  his  own  act,  after  receiving  the  in- 
jury, communicated  gonorrheal  germs  to  his  eye  by  rub- 
bing it,  in  consequence  of  which,  he  lost  the  use  of  it.  It 
was  clearly  his  own  act  after  the  injury  which  caused  the 
loss  of  his  eye.  We  are  of  the  opinion  that  the  finding  of 
the  Board  upon  this  question  should  not  be  disturbed. 

(2)  A  further  contention  is  made  that  the  conduct  of 
Ramlow  was  unreasonable,  amounting  to  wilful  and  inten- 
tional misconduct  within  the  meaning  of  Section  12,  Part 
II,  of  the  Compensation  Act.  This  is  based  upon  the  claim 
that  deceased  when  asked  by  his  attending  physician  if  he 
was  an  alcholic,  replied  that  he  was  not;  that  had  he  an- 
swered truthfully  that  he  was,  the  treatment  would  have 
been  different,  and  the  attack  might  have  been  averted. 
Touching  the  habit  of  deceased  in  this  respect,  his  foreman 
testified  that  he  had  known  the  deceased  for  23  years,  and 
that  he  had  worked  with  him  off  and  on  for  about  16  years, 
and  that  the  deceased  "used  to  take  a  drink  once  in  a  while, 
and  sometimes  quite  often'7  but  that  "he  never  saw  him  in 
a  state  when  he  thought  he  had  been  drinking  while  on  duty, 
and  that  his  drinking  did  not  interfere  with  his  work,  and 
that  during  the  sixteen  years  he  had  known  him,  he  had  not 
known  him  as  a  drinking  man."  There  is  nothing  in  the 
record  to  show  that  the  .deceased  understood  to  what  extent 
a  person  must  be  addicted  to  the  use  of  intoxicating  liquors 
to  become  an  alcoholic,  neither  is  there  anything  to  show 
that  he  knew  that  the  question  propounded  had  any  bearing 
upon  the  treatment  of  his  injury.  We  cannot  say  as  a 
matter  of  law  that  the  record  discloses  any  wilful  or  inten- 
tional misconduct  concerning  his  answer  to  the  doctor's 
question.  The  extent  to  which  he  was  addicted  to  the  use 
of  intoxicating  liquors  was  a  question  of  fact  and  the  same 
having  been  determined  by  the  Board,  it  is  not  within  our 


488  MICHIGAN  WORKMEN'S  COMPENSATION  CASHS. 

power  to   review  it.     Boyne  v.   Storage  &  Cartage  Co.,  181 
Mich.  278;  Redfield  v.  Ins.  Co.,  183  Mich.  633. 
The  award  must  be  affirmed. 


SUPREME  COURT. 

SIDNEY  DYER, 

Applicant, 
vs. 

JAMES  BLACK  MASONRY  &  CONTRACTING 
COMPANY, 

and 

EMPLOYERS'  LIABILITY  ASSURANCE  COR 
PORATION,  LTD., 

Respondents. 

EMPLOYE — INDEPENDENT  CONTRACTOR — CASUAL  EMPLOYMENT. 

The  applicant  was  injured  while  assisting  in  unloading  glass.  He 
was  doing  work  for  the  principal  contractors  on  the  David  Stott 
Building  in  Detroit,  pursuant  to  a  sub-contra6t  which  he  held 
from  them.  He  was  doing  the  work  of  unloading  the  glass  at  the 
time  of  his  injury  pursuant  to  a  verbal  arrangement  with  such 
principal  contractors  to  assist  in  such  unloading  from  time  to 
time,  said  principal  contractors  to  pay  him  for  the  work  so  per- 
formed. 

HELD:  1.  That  the  employment  was  not  casual  within  the  mean- 
ing of  the  Workmen's  Compensation  Act,  the  applicant  being  em- 
ployed to  do  a  particular  service  recurring  somewhat  regularly 
with  the  fair  expectation  of  continuance  for  a  reasonable  period 
of  time. 

2.  That  the  work  done  was  individual  labor  performed  for 
respondent  by  the  applicant  and  entirely  outside  the  terms  and 
scope  of  the  glazing  contract. 

Certiorari  to  the   Industrial  Accident  Board. 


DYER  vs.  BLACK  MASONRY  &  CONTRACTING  CO.     489 

Proceedings  by  Sidney  Dyer  against  the  James  Black 
Masonry  &  Contracting  Company  under  the  Workmen's  Com- 
pensation Act  for  compensation  for  injuries  sustained. 
Compensation  was  awarded  by  the  Industrial  Accident 
Board,  and  respondent  brings  certiorari.  Affirmed. 

Choate,  Robertson  &  Lehman®,  of  Detroit,  Attorneys  for 
applicant. 

Frederick  T.  Witmire,  of  Detroit,  Attorney  for  Respond- 
ents. 

STONE,  C.  J.  This  case  is  before  us  upon  certiorari  to  the 
Industrial  Accident  Board;  the  case  in  its  progress  having 
regularly  reached  the  Board,  which  granted  compensation 
to  the  claimant,  from  which  order  the  respondent  appeals. 

Claimant  was  injured  December  10,  1914,  at  the  David 
Stott  Building  in  Detroit.  He  and  his  partner,  John  Ross, 
were,  at  the  time  of  the  accident,  engaged  in  doing  the  glaz- 
ing on  the  building  in  question  under  the  following  written 
contract  with  the  principal  contractor: 

"Detroit,  Nov.  19,  1914. 

"Sidney  Dyer  &  John  Ross, 

City. 

Gentlemen : 

We  hereby  accept  your  proposition  for  furnishing  all  labor  and  ma- 
terials necessary  (with  the  exception  of  the  glass)  for  glazing  all 
the  glass  in  the  David  Stott  Building,  as  called  for  in  the  revised 
Specifications  dated  June  2nd,  1914  and  the  plans,  for  the  sum  of 
Three  hundred  and  twelve  ($312.00)  payable  on  the  completion  of  the 
work  and  the  acceptance  of  the  Architects,  Marshall  &  Fox. 

It  is  understood  between  us  that  the  glass  is. to  be  furnished  you 
at  the  site  of  the  said  building  and  you  are  to  take  it  from  there  and 
glaze  it. 

It  is  also  understood  that  you  are  not  to  glaze  any  glass  which  is 
called  for  to  be  done  by  any  other  contractor  rather  than  the  glaz- 
ing contractors.  The  glazing  contractors  are  Sidney  Dyer  and  John 
Ross,  working  under  the  name  of  Dyer  &  Ross. 

It  is  mutually  understood   that   the  glazing   contractors   are  to  be 


490  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

responsible  and  will  replace  all  glass  broken  by  them  in  handling  or 
setting  the  glass. 

James   Black   Masonry  &  Contracting  Co., 

By  A.  E.  Black,  (Signed) 

EAB :  CVR  Vice-President. 

Nov.  19,  1914, 
Accepted  by  Dyer  &  Ross, 

By  Sidney  Dyer  (signed),  Glaz.  Contractors." 

The  principal  contractor  finding  that  it  was  necessary  in 
the  progress  of  the  work  to  have  some  person  assist  in,  and 
look  after  the  delivering  of  the  glass  at  the  building  and 
see  to  the  unloading  of  the  glass,  arranged  with  the  claim- 
ant to  do  this  work,  from  time  to  time,  as  the  glass  arrived, 
for  which  services  claimant  was  to  receive,  and  did  receive 
payment  from  the  principal  contractor.  The  glass  was  in 
fact  delivered,  from  time  to  time,  at  the  building,  under  the 
contract  between  the  principal  contractor  and  the  Pitts- 
burgh Plate  Glass  Company. 

The  Industrial  Accident  Board  found  that  in  doing  the 
work  of  glazing  under  said  written  contract  the  claimant 
and  his  partner  were  independent  contractors.  The  Board 
further  found  as  follows: 

"The  arrangement  made  with  the  applicant  under  which  he  was 
to  look  after  the  delivery  and  unloading  of  the  glass  fairly  includes 
giving  such  reasonable  assistance  in  unloading  as  he  might  deem 
necessary.  It  cannot  reasonably  be  restricted  to  merely  overseeing 
and  directing,  but  fairly  included  any  reasonable  assistance  in  un- 
loading the  glass  which  was  reasonably  necessary  to  accomplish  the 
object  for  which  he  was  employed.  The  injury  therefore  which  he 
received  in  assisting  in  the  unloading  arose  out  of  and  in  the  course 
of  his  employment. 

The  arrangement  -  under  which  applicant  was  to  look  after  and 
assist  in  the  unloading  of  the  glass  was  no  part  of  his  contract  work. 
While  it  is  doubtless  true  that  the  arrangement  was  made  with  him 
because  he  was  doing  the  glazing  on  the  building,  it  might  have 
been  made  by  the  principal  contractor  with  any  other  person  who 
happened  to  be  in  the  vicinity  and  who  could  conveniently  do  the 
work  at  such  times  as  the  loads  of  glass  arrived  at  the  building.  It 
seems  clear  that  the  applicant  was  the  employe  of  the  principal  con- 
tractor for  the  work  in  question,  and  that  he  is  entitled  to  compensa- 


DYER  vs.  BLACK  MASONRY  &  CONTRACTING  CO.  491 

tion    for    the    injury    unless   the   employment   was    casual    within   the 
meaning  of  the  Workmen's  Compensation  law. 

It  should  be  noted  that  this  work  was  being  done  by  Sid  Dyer 
individually,  and  not  by  the  firm  of  Dyer  &  Ross.  It  was  billed  as  an 
individual  account  with  Mr.  Dyer  and  paid  as  such.  The  date  of  the 
contract  for  the  glazing  work  was  November  19,  1914;  the  injury 
occurred  December  10,  1914;  and  it  appears  from  the  evidence  that 
the  work  was  not  finished  until  the  latter  part  of  March.  It  also 
appears  that  the  work  to  be  done  was  periodic  in  its  nature,  that  is, 
from  time  to  time,  as  the  loads  of  glass  arrived  at  the  building.  The 
building  was  a  large  one  and  the  time  during  which  this  work  would 
have  continued  had  it  not  been  for  the  accident,  would  extend  over  a 
number  of  months.  While  it  is  true  it  was  not  steady  work,  or  work 
that  consumed  a  larger  portion  of  his  time,  yet  it  recurred  at  intervals 
with  the  progress  of  the  work  and  would  have  continued  until  the  job 
was  finished.  Under  these  facts  we  think  that  the  employment  was 
not  casual." 

There  was  testimony  of  the  claimant  to  the  following 
effect : 

Q.     "Now,  you  were  working  there  on  this  contract  were  you?" 

A.     "Yes  sir." 

Q.  "While  you  were  working  on  this  contract  state  whether  or  not 
you  were  engaged  to  do  other  work?" 

A.  "I  was  engaged  to  do'  other  work,  that  is  Mr.  Brennan  asked 
me  to  look  after  the  delivering  of  the  glass,  which  was  not  in  the 
contract.  I  told  him.  I  says,  'Well,'  I  says — He  says,  'I  am  pretty  busy 
and  I  would  like  to  have  you  look  after  that  work.'  I  said  'You  will 
have  to  do  the  signing;  you  will  have  to  sign  for  the  glass  when  it 
is  delivered.'  " 

Q.     "Did  you  help  with  the  delivery  of  the  glass?" 

A.     "Yes  sir." 

Q.     "Do  you  know  when  the  first  load  was  delivered?" 

A.  "Why,  I  cannot  say  when  the  first  load  was  delivered.  It  was 
prior  to  December — it  was  probably  somewhere  around  Thanksgiving 
that  the  first  glass  was  delivered  there." 

Q.     "Did  you  help  with  the  delivery  of  that?" 

A.     "Yes  sir." 

Q.     "Did  you  help  unload  it?" 

A.     "Yes  sir." 

Q.     "Put  it  in  the—" 

A.     "(Interrupting!    Put  it  in  the  building." 

Q.     "Was  that  part  of  your  duty  under  this  contract?" 

A.     "No  sir,  it  was  not  part  of  my  duty  at  all." 


492  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

Q.  "Was  Mr.  Brennan  around  at  that  time  when  you  were  doing 
this?" 

A.  "Yes  sir,  Mr.  Brennan  passed  through  the  building  while  I  was 
doing  that." 

Q.     "When  did  the  second  load  come?" 

A.     "Well,  it  might  have  been  ten  days  after." 

Q.     "Did  you  help  with  the  delivery  of  that?" 

A.     "Yes  sir." 

Q.     "Help  unload  it?" 

A.     "Yes  sir,  I  put  my  hands  on  the  case  steadying  it." 

Q.     "Was  there  help  needed  there  at  that  time?" 

A.  "Why,  it  is  always  in  taking  off  glass,  it  requires  somebody 
that  is  accustomed  to  that  kind  of  work,  for  to  do  it,  and  they  were 
kind  of  shorthanded,  and  I  naturally  helped  out.  I  thought  that  was 
what  Mr.  Brennan  wanted  me  to  do,  he  asked  me  to  look  after  the 
delivering  of  it." 

Q.  "State  whether  or  not  you  were  injured  at  the  time  that  you 
were  assisting  in  unloading  the  second  load?" 

A.     "I  was." 

Witness  then  proceeded  to  describe  the  injury. 

The  substance  of  this  testimony  was  repeated  upon  the 
cross-examination  of  the  witness.  No  question  was  raised 
that  Mr.  Brennan,  who  was  the  superintendent  of  the  re- 
spondent, made  the  arrangement  with  the  claimant,  as  testi- 
fied to  by  the  latter,  that  he  had  authority  to  do  so,  and 
that  claimant  was  personally  paid  for  such  extra  services  by 
cheek  signed  in  the  name  of  the  respondent,  by  Mr.  Brennan 
as  superintendent. 

The  questions  raised  by  the  assignments  of  error  relied 
upon  by  appellant  are  as  follows: 

(1)  Whether  applicant  was  an  employe  within  the  mean- 
ing of  the  Workmen's  Compensation  Act,  or  one  whose  em- 
ployment was  but  casual,   and   whether  the  finding  of   the 
Industrial  Accident  Board  that  applicant  was  an  employe  at 
the  time  of  the  injury  was  justified  by  the  evidence? 

(2)  Whether  applicant  was  an   employe  or  independent 
contractor  at  the  time  of  the  injury? 

A  part  of  Sec.  7  of  Part  I,  of  Act  No.  10  of  the  Public  Acts 
of  1912,  defines  the  term  "employe"  as  follows: 


DYER  vs.  BLACK  MASONRY  &  CONTRACTING  CO.  493 

"Every  person  in  the  service  of  another  under  any  contract  of  hire, 
express  or  implied,  oral  or  written,  *  *  *  but  not  including  any  per- 
son whose  employment  is  but  casual  or  is  not  in  the  usual  course  of 
the  trade,  business,  profession  or  occupation  of  his  employer." 

(1)  It  is  urged  by  appellant  that  the  employment  of 
claimant  in  doing  the  work  in  which  he  was  engaged  was 
but  casual;  and  it  is  said  that  the  word  "casual,"  as  used  in 
the  section  quoted,  should  be  taken  in  its  ordinary  sense. 
That  there  is  nothing  in  the  context  of  the  law  to  indicate 
that  the  legislature  intended  to  give  it  an  enlarged  or  un- 
usual meaning.  The  following  definition  is  quoted  from  6 
Cyc.,  701: 

"Casual.  Not  designedly  brought  about;  happening  by  accident  or 
brought  about  by  an  unknown  cause." 

The  following  definition  is  quoted  from  the  laws  of  Ne- 
braska : 

"The  word  'casual'  shall  be  construed  to  mean  'occasional';  coming 
at  certain  times  without  regularity;  in  distinction  from  stated  or 
regular." 

It  is  the  claim  of  counsel  for  appellant  that  the  instant 
case  is  controlled  by  Gaynor's  Case,  217  Mass.,  86;  and 
Oheever's  Case,  219  Mass.,  244,  which  were  decided  under  a 
statute  exactly  like  ours.  We  are  unable  to  agree  with 
counsel  that  those  cases  are  controlling  of  the  instant  case, 
and  we  think  they  are  readily  distinguished. 

In  Gaynor's  Case  the  deceased  employe  was  a  waiter  em- 
ployed at  the  time  his  injuries  were  received  by  T.  D.  Cook 
&  Company,  Incorporated,  a  caterer,  having  a  regular  place 
of  business  in  Boston.  It  had  a  contract  to  serve  a  banquet 
at  Mount  Holyoke  College,  South-  Hadley,  and  on  the  day 
before  engaged  deceased  for  service  at  that  banquet.  Its 
agent  told  the  deceased  that  if  he  would  report  at  the  South 
Station,  Boston,  the  next  morning,  he  could  go  to  South 
Hadley  at  its  expense  with  the  other  waiters.  The  wage  for 
the  service  was  to  be  $4.00,  together  with  transportation 


494  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

from  Boston  to  South  Hadley,  and  return.  The  deceased  re- 
ported at  seven  o'clock  on  the  morning  of  the  next  day, 
reached  South  Hadley  at  half-past  eleven  o'clock  of  the  fore- 
noon, and  was  injured  while  preparing  to  serve  the  banquet. 
This  was  the  first  time  he  had  ever  worked  for  this  employer. 
The  work  was  finished  at  five  o'clock  in  the  afternoon,  and 
the  decedent  then  would  have  been  entitled  to  $4.00,  and 
would  have  been  at  liberty  either  to  return  to  Boston  at  the 
expense  of  his  employer,  or  to  go  elsewhere  on  his  own  ac- 
count. It  was  a  part  of  the  regular  business  of  the  em- 
ployer to  provide  and  serve  banquets,  but  for  such  service  no 
men  were  regularly  employed.  The  custom  of  the  catering 
business  is  that  such  banquets  are  served  by  waiters  secured 
for  the  particular  occasion.  Such  a  waiter  might  work  for 
different  employers  on  the  same  day,  or  for  many  different 
employers  on  successive  days.  The  court,  after  stating  the 
above  facts,  said: 

The  point  to  be  decided  is  whether  the  deceased  was  an  employe 
as  defined  in  the  Workmen's  Compensation  act." 

Quoting  language  exactly  like  that  contained  in  our  own 
statute,  the  court  further  said: 

4'The  crucial  words  to  be  construed  are  those  contained  in  the  ex- 
ception out  of  the  class  of  employe  of  'one  whose  employment  is  but 
casual.'  The  word  'casual'  is  in  common  sense.  Its  ordinary  signification, 
as  shown  by  the  lexicographers,  is  something  which  comes  without 
regularity  and  is  occasional  and  incidental.  Its  meaning  may  be  more 
clearly  understood  by  referring  to  its  antonyms  which  are,  regular, 
systematic,  periodic  and  certain."  *  *  * 

"It  would  be  difficult  to  conceive  of  employment  more  nearly  casual 
in  every  respect  than  was  that  of  the  employe  in  the  case  at  bar.  The 
engagement  was  for  a  single  day,  and  for  one  occasion  only.  It  in- 
volved no  obligation  on  the  part  of  the  employer  or  employe  beyond 
the  single  incident  of  the  work  for  four  or  five  hours  at  the  college. 
That  would  have  had  its  beginning  and  ending,  including  the  outward 
and  returning  journeys  (but  for  the  unfortunate  accident),  within  a 
period  of  less  than  twenty-four  hours.  The  relation  between  the 
waiter  and  the  caterer  had  no  connection  of  any  sort  with  any  events 
In  the  past.  Each  was  entirely  free  to  make  other  arrangements  for 


DYER  vs.  BLACK  MASONRY  &  CONTRACTING  CO.  495 

the  future,  untrammelled   by  any  express   or  implied  expectations  of 
further  employment." 

We  think  the.  Gaynor  case  is  so  clearly  distinguished 
from  the  instant  case  that  further  comment  is  unnecessary. 

In  Cheever's  Case,  supra,  a  teamster,  having  three  or  four 
separate  horses  and  teams,  who  was  sent  for  whenever  he 
was  needed  by  the  proprietor  of  a  coal  yard  doing  a  retail 
coal  business,  and  at  such  times  was  employed  by  such  coal 
dealer  for  periods  of  a  number  of  successive  days,  but  "for 
no  fixed  duration  of  time  and  for  no  specified  job,"  and  while 
so  employed  "worked  the  same  as  any  other  (of  the  coal 
dealer's  regular  men,)"  was  injured  in  the  course  of  such 
employment.  It  was  held  that  he  was  not  entitled  to  com- 
pensation, because  his  employment  was  but  casual  within 
the  meaning  of  the  Massachusetts  statute  then  in  force. 

It  will  be  observed  that  in  Cheever's  case  the  employment 
was  for  no  fixed  duration  of  time,  and  for  no  specified  job, 
thus  distinguishing  it  from  the  instant  case. 

Our  attention  is  also  called  by  appellant's  counsel  to 
numerous  English  cases.  While  they  can  all  be  distinguish- 
ed, it  should  be  borne  in  mind  that  the  English  act  differs 
from  ours.  In  the  English  act  is  the  following  language: 

"Workman  does  not  include  a  person  whose  employment  is  of  a 
casual  nature,  and  who  is  employed  otherwise  than  for  the  purpose 
of  the  employer's  trade  or  business." 

Under  the  English  act,  to  constitute  a  defense  it  must  ap- 
pear that  the  employment  was  of  a  casual  nature,  and  that 
it  was  not  in  the  usual  course  of  the  employer's  trade,  oc- 
cupation or  profession.  Our  statute  uses  the  word  "or," 
where  the  English  has  the  word  "and,"  so  that  while  under 
the  English  statute  both  defenses  must  exist  together  in  or- 
der to  defeat  liability,  it  is  sufficient  under  the  Michigan  act 
if  either  exists  without  reference  to  the  other. 

Can  it  be  said  that  the  employment  of  the  claimant  in  the 
instant  case  was  purely  a  chance  employment?  Was  it  not 


496  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

rather  regular,  stated  or  periodic?  Judge  Ruegg,  in  his 
work  entitled  ''Employer's  Liability  and  Workmen's  Com- 
pensation," in  discussing  the  English  cases  at  page  276,  says: 

"A  person  who  is  employed  one  or  more  days  in  each  week  to  do 
work  which  must  be  done,  or.  which  it  is  known  it  will  be  advisable 
to  do  at  these  times,  is  not  casually  employed." 

"Indeed,  whenever  the  same  person  under  contract  with  an  employer 
to  do  work  at  recurring  times  which  must,  or  which  it  is  known  be- 
forehand it  will  be  convenient  to  do  at  such  recurring  times,  the  em- 
ployment of  such  person  it  is  believed,  is  not  of  a  casual  nature.  *  * 
*  *  To  take  one  or  two  illustrations:  If  A  employs  B  to  work  one 
day,  or  half  a  day  a  week  in  his  (A's)  private  garden  subject  to  his 
control,  B  is  not  casually  employed;  he  is  regularly  employed  at  re- 
curring ascertained  times." 

"Further,  if,  in  the  same  illustration,  the  times  are  not  strictly 
denned,  but  the  contract  is  that  B  shall  do  the  work  required  in  the 
garden,  as  it  is  required  from  time  to  time,  no  fresh  contract  or  en- 
gagement being  contemplated  between  the  parties,  though  a  discretion 
may  be  left  in  the  workman  to  select  the  time  or  times  of  work,  it 
is  believed  the  employment  is  not  casual,  for  though  the  work  may 
be  of  a  casual  nature,  B  is  under  contract  to  do  it  as  and  when  it 
arises,  consequently  his  employment  is  not  casual." 

"Much  must  depend  upon  the  certainty  of  the  work  recurring  at 
times  which,  though  they  cannot  be  fixed  definitely,  yet  can  be  fixed 
generally,  and  the  work  when  it  arises  having  to  be  done  by  the  same 
person." 

In  the  instant  case  it  is  fair  to  suppose  that  the  general 
contractor  knew  how  much  glass  was  to  be  delivered  at  the 
building.  It  became  necessary  in  the  interest  of  the  busi- 
ness of  the  general  contractor  to  have  the  delivery  of  the 
glass  looked  after,  and  supervised,  and  claimant  was  em- 
ployed for  that  purpose.  That,  as  the  glass  was  to  be  de- 
livered as  the  work  progressed  on  recurring  occasions,  it 
certainly  cannot  be  said  any  of  the  necessary  work  to  be  done 
in  furthering  the  job  or  enterprises  was  casual,  for  it  was 
sure  to  occur  and  recur  in  the  operation  of  the  job.  There 
was  an  element  of  certainty  in  the  work  recurring  at  times 
which,  though  they  could  not  be  fixed  definitely,  yet  were 
fixed  generally  by  the  agreement  to  look  after  and  assist  in 
unloading  the  glass  as  it  arrived,  from  time  to  time. 


DYER  vs.  BLACK  MASONRY  &  CONTRACTING  CO.  497 

In  our  opinion  the  employment  of  the  claimant  was  not 
casual.  It  has  been  held  that  the  employment  is  not  casual 
within  the  meaning  of  that  term  as  used  in  the  Employers' 
Liability  act,  where  one  is  employed  to  do  a  particular  part 
of  the  service  recurring  somewhat  regularly  with  the  fair  ex- 
pectation of  the  continuance  for  a  reasonable  period. 

Sabella  v.  Brezileiro,  (N.  J.  L.)  91  Atl.,  1032; 
Howard's  Case,  218   Mass.,  404. 

In  Thompson  v.  Twiss,  decided  by  the  Supreme  Court  of 
Errors  of  Connecticut,  on  April  19,  1916,  (97  Atl.,  328,)  un- 
der a  statute  like  the  English  act,  it  was  held  that  the  term 
"casual  employment"  means  occasional  or  incidental  em- 
ployment, the  employment  which  comes  without  regularity, 
and,  if  the  employment  be  upon  an  employer's  business  for 
a  definite  time,  as  for  a  week,  or  a  month,  or  longer,  or  if  it 
be  for  a  part  of  one's  time  at  regularly  recurring  periods 
of  time,  it  is  not  a  casual  employment,  whether  the  contract 
of  service  or  the  nature  of  the  service  be  regarded ;  and  hence 
a  claimant,  employed  by  defendant  in  the  development  of 
several  tracts  of  land,  who,  if  he  satisfied  his  employer,  would 
remain  to  the  end  of  the  work,  requiring  at  least  a  number 
of  weeks,  was  not  engaged  in  a  casual  employment. 

(2)  We  think  that  the  Industrial  Accident  Board  was 
correct  in  its  finding  that  the  work  being  done  at  the  time 
of  the  accident  was  not  under  the  terms  of  the  written  con- 
tract of  November  19,  1914,  but  was  individual  labor  being 
performed  by  the  claimant  in  the  employment  of  the  respond- 
ent, and  entirely  outside  the  terms  and  scope  of  the  written 
contract.  We  find  no  error  in  the  conclusion  reached  by  the 
Industrial  Accident  Board,  and  its  order  is  affirmed. 
63 


498  MICHIGAN  WORKMEN'S   COMPENSATION  CASES. 


BY  INDUSTRIAL  ACCIDENT  BOARD. 


DEPUTY  SHERIFF  AN  OFFICER. 

In  Button  vs.  Chippewa  County  the  applicant  was  a  Deputy 
Sheriff  of  Chippewa  County,  and  while  attempting  to  make 
an  arrest  in  the  regular  discharge  of  his  duty  he  was  shot 
and  killed.  The  sole  question  in  the  case  is  whether  a  deputy 
sheriff  is  an  officer  within  the  meaning  of  the  Michigan  Work- 
men's Compensation  Law. 

Held,  That  he  was  an  officer  within  the  meaning  of  the 
Act,  and  that  his  dependents  were  not  entitled  to  compensa- 
tion. 


LONGSHOREMEN— EMPLOYES  UNDER  THE  LAW. 

It  was  claimed  by  the  employer  that  the  longshoreman  in- 
jured in  unloading  lumber  from  a  vessel  at  Bay  City  was  not 
an  employe  within  the  meaning  of  the  law.  That  the  company 
contracted  with  a  business  agent  of  the  Longshoremen's  Union 
to  unload  the  cargo  of  lumber  from  the  vessel  at  a  certain 
stipulated  price  per  hour  for  the  men  engaged.  That  the 
business  agent  was.  to  employ  the  men  and  perform  the  work, 
the  employer  merely  to  pay  for  the  result. 

Held,  That  the  men  employed  in  unloading  the  vessels 
were  employes  within  the  meaning  of  the  Workmen's  Compen- 
sation Law,  and  that  they  were  hired  through  the  business 
agent  of  the  organization  for  the  purpose  of  doing  the  work 
in  question.  Compensation  awarded. 


RULES    FOR    REPORTING    OF    ACCIDENTS.  499 


PARTIAL   DEPENDENTS— NO   DEDUCTION   FOR 
BOARD. 

Where  the  wage  earner  is  a  minor  child,  and  compensation 
is  claimed  by  parents  as  partial  dependents,  no  deduction  is  to 
be  made  for  the  board  of  such  child.  This  position  is  supported 
by  the  decision  of  the  Supreme  Court  of  Massachusetts  in  the 
case  of  Gove  vs.  Royal  Indemnity  Company,  111  N.  E.  Rep. 
702. 


RULES  AND  SYSTEM  OF  REPORTING  ACCIDENTS 
AND  THE  MAKING  AND  KEEPING  RECORD  OF 
ADJUSTMENT  AND  PAYMENT  OF  COM- 
PENSATION. 

WHAT    ACCIDENTS    TO    BE    REPORTED. 

Rule  1.  All  accidents  which  result  in  disability  continu- 
ing for  more  than  one  full  working  day  shall  be  reported  to  the 
Board ;  all  accidents  involving  the  loss  of  a  member  shall  be  so 
reported  irrespective  of  the  question  of  disability  resulting; 
all  accidents  causing  death  shall  be  reported  to  the  Board. 

WHEN  TO  BE  REPORTED. 

Rule  2.  All  employers  subject  to  the  Compensation  Law 
shall  make  reports  to  the  Board  weekly  of  all  accidents  to 
their  employes  which  come  within  the  classes  of  accidents 
designated  in  Rule  1.  Such  reports  shall  be  on  and  in  ac- 
cordance with  the  requirements  of  the  weekly  report  blank, 
Form  No.  5-a. 


500  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

FIFTEENTH-DAY    REPORT. 

ilule  3.  In  all  cases  where  the  disability  resulting  to  the 
injured  employe  continues  for  more  than  fourteen  days,  a 
further  report,  on  and  in  accordance  with  the  requirements 
of  report  blank,  Form  No.  6,  shall  be  made  to  the  Board 
on  the  Fifteenth  day  of  such  disability:  Provided,  That  in 
all  cases  where  the  accident  causes  the  loss  of  a  member  or 
death,  such  report  on  Form  No.  6  shall  be  made  to  the  Board 
within  ten  days  after  such  accident  or  such  death,  as  the 
case  may  be. 

IMMEDIATE  REPORT  REQUIRED. 

Rule  4.  In  all  cases  where  a  claim  for  compensation  is 
filed  with  the  Board  by  an  injured  employe,  if  it  appears 
that  the  report  required  by  Rule  3  has  not  been  made  by  the 
employer  on  account  of  disagreement  as  to  the  continuance 
of  the  disability  or  for  any  other  reason,  the  Board  shall 
thereupon  require  such  employer  to  forthwith  file  a  report 
of  the  accident  on  and  in  accordance  with  the  requirements 
of  blank  Form  No.  6. 

AGREEMENT    IN    REGARD   TO    COMPENSATION. 

Rule  5.  When  an  agreement  in  regard  to  compensation  is 
made  between  the  employer  and  the  injured  employe  or  his 
dependents,  the  same  shall  be  in  writing  on  and  in  accord- 
ance with  Form  No.  10,  and  submitted  to  the  Board  for  ap- 
proval. 

SUPPLEMENTAL  REPORT. 

Rule  6.  In  cases  where  death  occurs,  a  supplemental  report 
shall  be  forthwith  filed  on  Form  No.  7,  giving  information  as 
to  dependents  of  deceased. 


RULES    FOR    REPORTING    OF   ACCIDENTS.  501 

RECEIPTS  FOR  COMPENSATION. 

Rule  7.  After  an  agreement  in  regard  to  compensation  is 
made  between  the  employer  and  the  injured  employe  or  his 
dependents,  and  approved  by  the  Board,  and  also  in  cases 
where  an  award  of  compensation  is  made,  receipts  for  weekly 
payments  of  compensation  on  Form  No.  11,  signed  by  such 
employe  or  his  dependents,  shall  be  filed  in  the  office  of  the 
Board  from  time  to  time  as  such  payments  are  made. 

FINAL   REPORT. 

Rule  8.  When  the  disability  of  the  injured  employe  termi- 
nates; also,  when  the  payment  of  the  compensation  for  the 
loss  of  a  member,  or  death,  has  been  fully  made,  final  report 
thereof  shall  be  filed  with  the  Board,  on  and  in  accordance 
with  Form  No.  7-a,  together  with  settlement  receipt  on  and  in 
accordance  with  Form  No.  12,  signed  by  the  employe  or  his 
dependents,  as  the  case  may  be. 

Rule  9.  Wherever  the  word  "employer"  is  used  in  the 
foregoing  rules,  numbered  from  1  to  8  inclusive,  it  shall  be 
construed  to  cover  the  employer,  also  the  insurance  company 
carrying  the  risk,  or  the  Commissioner  of  Insurance,  as  the 
case  may  be. 


HOW  TO  REPORT  ACCIDENTS. 

On  the  following  pages  will  be  found  a  concrete  case,  dis- 
playing the  correct  method  of  reporting  an  accident,  and 
also  the  procedure  to  be  followed  when  payment  of  compen- 
sation is  made.  It  will  be  observed  that  ALL  accidents  re- 
sulting in  disability  of  one  full  working  day  or  more  are 
recorded  on  the  weekly  report  form  (No.  5-a).  If  incapacity 
exceeds  fourteen  days,  a  detailed  report  on  form  No.  6  will 
be  filed  on  the  fifteenth  day,  and  the  latter  will  be  followed 
at  an  interval  of  not  to  exceed  fifteen  days  by  an  agreement 


502  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

in  regard  to  compensation,  executed  on  form  No.  10.  When 
an  " Agreement  in  Regard  to  Compensation'7  is  reached,  pay- 
ments are  to  be  made  weekly,  and  receipts  taken  for  the  same 
upon  form  No.  11,  entitled  "Keceipt  on  Account  of  Compen- 
station,"  which  are  to  be  filed  with  the  Industrial  Accident 
Board.  When  the  final  payment  is  made  a  "Settlement  Ke- 
ceipt" is  taken  upon  form  No.  12,  and  this  is  submitted  to- 
gether with  form  No.  7-a,  "Final  Report  of  Accident,'7  show- 
ing that  the  case  is  closed  and  completing  the  files  of  the 
Board.  Form  No.  7  will  be  filed  if  death  results  so  that  in- 
formation may  be  had  as  to  dependents. 


THINGS  TO  REMEMBER. 

Employers,  and  agents  who  are  handling  the  reporting  and 
adjusting  of  accidents,  will  facilitate  the  work  of  the  In- 
dustrial Accident  Board  by  paying  careful  attention  to  the 
"Rules  and  System  for  Reporting  and  Handling  Accidents" 
and  guiding  themselves  accordingly. 

The  personal  signature  of  the  injured  employe,  or  depend- 
ents to  whom  compensation  is  to  be  paid,  is  required  and 
must  always  appear  on  the  "Agreement  in  Regard  to  Com- 
pensation," "Receipts  on  Account  of  Compensation"  and  "Set- 
tlement Receipts."  Typewritten  signatures  will  not  be  ac- 
cepted, and  all  papers  so  signed  will  be  returned  for  correc- 
tion. The  mark  of  an  employe  who  cannot  write  will,  when 
properly  witnessed,  be  accepted.  An  "Agreement  in  Regard 
to  Compensation"  must  bear  the  signature  of  the  injured 
man  or  his  dependents.  It  must  also  bear  the  signature  of 
the  employer,  and  when  such  signature  is  made  by  an  officer 
or  agent  of  the  employer,  the  signature  of  such  officer  or  agent 
must  be  accompanied  by  an  appropriate  designation  of  his 
official  position  or  agency.  The  execution  of  the  agreement 
must  be  attested  by  two  witnesses,  as  indicated  in  the  form. 


RULES    FOR   REPORTING    OF   ACCIDENTS.  503 

Incomplete  or  improperly  executed  papers  will  be  returned 
for  correction. 

Illegible  signatures  should  be  written  in  duplicate  on  re- 
ceipts and  agreements  to  facilitate  the  work  of  the  filing  de- 
partment, so  that  confusion  in  the  indexing  of  and  reference 
to  cases  can  be  avoided.  This  will  be  helpful  to  employers 
as  well  as  to  the  Board. 

''First  Report  of  Accident"  submitted  on  Form  No.  6 
should  give  the  correct  name,  address,  (street  and  number) 
and  age  of  the  injured  employe,  as  well  as  a  concise  descrip- 
tion of  the  accident,  the  nature  of  the  injury,  and  all  other 
information  called  for  on  the  blanks.  All  of  the  other  reports 
required  should  be  equally  full  and  accurate. 

The  Board  has  prepared  blanks  for  reports  required  to  be 
made  to  it,  specifying  the  information  to  be  given  by  appro- 
priate spaces,  headings  and  questions.  ALL  OF  THESE 
MUST  BE  FILLED  IN  AND  SUITABLY  ANSWERED  IN 
EVERY  REPORT.  THE  MERE  FILLING  IN  OF  PART 
OF  THE  BLANK  DOES  NOT  CONSTITUTE  A  REPORT 
AND  WILL  NOT  BE  ACCEPTED.  The  fundamental  rule 
everywhere  in  the  matter  of  reports  is,  that  ALL  QUES- 
TIONS MUST  BE  ANSWERED.  The  person  making  the 
report  is  not  at  liberty  to  select  a  few  of  the  matters  or  to 
decide  for  himself  those  that  will  remain  unanswered.  If  in 
a  few  instances  (and  these  instances  should  be  few),  it  is 
impossible  to  give  the  answer,  it  should  be  so  stated  in  the 
report. 

WHEN  COMPENSATION  IS  DUE  SEE  THAT  THE  IN- 
JURED EMPLOYE  OR  HIS  DEPENDENTS  RECEIVE 
SAME  WITHOUT  DELAY. 

SEE  THAT  INJURED  EMPLOYE  RECEIVES  IMME- 
DIATELY THE  MEDICAL  AND  HOSPITAL  SERVICE  TO 
WHICH  HE  IS  ENTITLED  UNDER  THE  ACT. 


504  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

SAMPLE    CASE,    REPORTS,    ETC. 

1.  Weekly  Report  Form. 

2.  Report  of  Accident. 

3.  Supplemental  Report  of  Accident. 

4.  Final  Report  of  Accident. 

5.  Agreement  in  regard  to  Compensation. 

6.  Receipt  on  account  of  Compensation. 

7.  Settlement  Receipt. 

8.  Notice  to  Employer  of  Claim  for  Injury. 

Properly  made  on  the  blanks  of  the  Board,  the  matter 
printed  on  the  blank  being  in  Roman  type,  and  the  jnatter 
written  into  such  blanks  in  preparing  the  same  for  execution 
is  printed  in  Italics. 


FORMS. 


505 


WEEKLY  REPORT  FORM.* 

For  week  ending   May  16,   1916. 


Form  No.  5A 

Date  received 

(Do  not  fill  in.) 

Name  of  Employer Sherwood  Motor  Company, 

Address  (Street  and  Town) 767-73  Water  Street,  Franklin,  Michigan 

Nature  of  Business Motor  Manufacturing 

Signature  of  person  making  report F.  M..CRANDELL Position Chief  Clerk. 


Date  of 
Injury  . 

Name. 

Nature  of  Injury. 

Occupation. 

i 

Time  lost 
Days. 

Medical 
Expense. 

Accidents  Reported  for  the  First  Time. 

6/12 

Alex  Sherbrook 

Broken  Ribs 

Trucker 

40 

4 

$35 

5/15 

John  Flanagan 

Strain  of  Left  Wrist 

Bench  Hand 

20 

1 

00 

5/13 

E.  II.  Gladstone 

Cut  on  4th  finger 

Drill  Press  Man 

18 

2 

1 

. 



| 

\  . 

Accidents  Reported  on  Previous  Weekly  Report,  Disability  Continuing  (but  less  than  fifteen 

days.) 


0/4 

John  K.  Ledyard 

Contused  right  foot 

Grinder 

29 

12 

$45 

5/6 

Samuel  Reed 

Broken  Arm 

Tester 

35 

10 

65 

5/5 

Edward  Murray 

Broken  Leg 

Trucker 

19 

11 

48 

A  ccidents  Previously  Reported  but  included  here  for  the  purpose  of  giving  Medical  Expense 
which  we  were  unable  to  furnish  at  date  of  former  report. 

5/11 

R.  M.  Huff 

Lacerated  Scalp 

Foreman 

45 

5 

94 

I 

FORWARD  WEEKLY  TO  INDUSTRIAL  ACCIDENT  BOARD,  LANSING,  MICH. 


506  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


REPORT   OF   ACCIDENT   WHERE    COMPENSATION    IS 

INVOLVED. 

Form  No.  6  is  to  be  filed  only  in  compensation  cases,  i.  e., 
when  temporary  disability  has  exceeded  fourteen  days,  or 
when  an  accident  results  in  the  loss  of  a  member,  or  in 
death,  or  permanent  disability.  When  No.  6  is  filed,  it 
should  be  submitted  promptly  on  the  fifteenth  day  following 
the  injury,  and  it  should  be  followed  at  an  interval  of  not 
to  exceed  fifteen  days  by  an  ''Agreement  in  Regard  to  Com- 
pensation" on  form  No.  10. 

When  form  No.  6  is  filed  the  Board  will  take  notice  that 
compensation  is  involved  and  request  for  an  agreement  in 
regard  to  the  same  will  be  made  if  form  No.  10  is  not  then 
on  file  in  the  office  of  the  Industrial  Accident  Board. 


FORMS.  507 

Form  No.  6. 

Date  received 

(Do  not  fill  in.) 

MICHIGAN  INDUSTRIAL  ACCIDENT  BOARD. 
Report  of  Accident. 

(To  be  made  only  in  cases  involving  loss  of  a  member,  or  death,  or  disability  continuing 
more  than  fourteen  days.) 

1.  Name  of  employer Sherwood  Motor  Company 

2.  Address  of  employer 767-73  Water  Street,  Franklin,  Michigan 

3.  Nature  of  business M-otor  Manufacturing 

4.  Location  of  plant  or  place  of  work  where  accident  occurred,  if  not  at  office  address 

Same  as  No.  2 

5.  Name  of  injured  employe John  K.  Ledyard 

6.  Address  of  injured  employe   (including  street   No.) 303   Main   Street, 

Franklin,  Mich 

7.  Occupation   of  injured Grinder 8.     Department   or  branch   of 

work No.  8  of  Shops 

9.  Was  this  regular  occupation? Yes 10.  If  not,  state  regular 

occupation 

11.  How  long  so  employed? 16  months 12.  Age 29  yrs 

13.  Sex Male 14.  Place  of  birth England 

15.  Single,  married,  widowed  or  divorced Married 

16.  Number  of  children  under  16  years Three 

17.  Date  of  accident May  4,  1916 18.     Hour  of  accident ...  .3  P.  M. 

19.  Hour  injured  person  began  work  that  day 7  A.  M 

20.  Was  full  wage  paid  for  day  of  injury? Yes 

21.  Wages  or  average  earnings  per  day .  .  .  .  S3 .  .  .  .     22.     Working  hours  per  day .  .  9  hrs. 

23.  Days  worked  per  week Six >. 

24.  Place  of  accident  in  detail Department  No.  8,  Sherwood  Motor  Company 

Shops 

25.  Cause  and  manner  of  accident Large  piece  of  steel  fell  on  his  foot,  crushing 

same .... 


26.  Nature  and  extent  of  injury Severe  contusion  of  right  foot,  bones  of  second 

and  third  toes  broken 

27.  Name  and  address  of  attending  physician E.  J.  Parker,  121  Atwater  St., 

Franklin 

28.  Was  injured  taken  to  hospital,  if  so,  give  name  and  address? City  Hospital 

Saginaw  Street 

'Signature  of  person  making  out  report F.  M.  CRANDELL 

(Original  signature  in  ink  required,  otherwise  will  be  returned.) 

Position Chief  Clerk 

(State  clearly  your  position,  official  or  otherwise,  with  the  employer  or  insurer.) 
Date  of  report May  18,  1916 

INSTRUCTIONS. 

The  time  for  making  this  report  in  cases  where  the  accident  involves  the  loss  of  a 
member,  or  death,  is  within  ten  days  after  the  accident.  Where  the  accident  results 
in  disability  only,  this  report  is  to  be  made  on  the  fifteenth  day  after  the  accident. 

In  case  the  accident  causes  the  loss  of  a  member,  state  exactly  what,  and  the  precise 
point  of  amputation:  For  example,  the  index  finger  of  the  right  hand  at  the  second 
joint,  or  the  left  arm  at  the  elbow;  the  right  eye,  etc. 

ANSWER  THE  QUESTIONS  ON  THIS  BLANK  FULLY.  INCOMPLETE  OR 
INDEFINITE  REPORTS  WILL  BE  RETURNED  FOR  CORRECTION. 


506  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


SUPPLEMENTAL   REPORT. 

The  following  form,  No.  7,  "Supplemental  Report  of  Ac- 
cident," is  to  be  submitted  in  addition  to  form  No.  6  if  death 
results  so  that  knowledge  as  to  names  of  all  known  depend- 
ents and  such  other  information  as  desired  may  be  on  record 
in  the  offices  of  the  Industrial  Accident  Board. 


Form  No.  7. 

Date  received File  No.  of  accident 

(Do  not  fill  in.)  (Do  not  fill  in.) 

MICHIGAN  INDUSTRIAL  ACCIDENT  BOARD 
Supplemental  Report  of  Accident 

1.  Name  of  employer Sherwood  Motor  Company 

2.  Address  of  employer 767-73   Water  Street,  Franklin,  Michigan 

3.  Name  of  injured  person Peter  Jones 

4.  State  whether  injury  resulted  in  death,  or  in  temporary,  partial  or  total  disability 

Death 

5.  If  at  hospital  give  name  and  location City  Hospital,  Saginaw  St.,  Franklin- 

6.  If  not  yet  resumed  work,  state  probable  period  of  further  disability 

7.  Did  you  furnish  all  medical  aid  required  during  first  three  weeks? 

8.  Amount  of  compensation  paid  to  date 9.     No.  of  weeks 

10.  Has  injured  employe  returned  to  work? 

11.  If  so,  give  date 12.     Date  of  accident May  4,  1916. 

13.     If  injury  resulted  in  death,  give  names,  ages,  relationship  and  address  of  ALL 

dependents: 

Name.  Age.         Relationship.  Address. 

Mary  Jones 3d Wife Franklin,  Michigan  .  . 

George  Jones 13 Son Franklin,  Michigan  .  . 

Muriel  Jones 6 Daughter Franklin,  Michigan .  . 


14.  Signature  of  person  making  report F.  M.  C  RAN  DELL 

15.  Position Chief  Clerk Date  of  report May   18,   1916. 

The  report  called  for  in  this  blank  is  required  to  be  made  one  month  after  first 
report  is  sent  in.  Use  this  form  for  final  report  if  death  results  during  interim. 

INSTRUCTIONS. 

In  case  the  accident  causes  the  loss  of  a  member,  state  exactly  what,  and  the  precise 
point  of  amputation:  For  example,  the  index  finger  of  the  right  hand  at  the  second 
joint,  or  the  left  arm  at  the  elbow;  the  right  eye,  etc. 

ANSWER  THE  QUESTIONS  ON  THIS  BLANK  FULLY.  INCOMPLETE  OR 
INDEFINITE  REPORTS  WILL  BE  RETURNED  FOR  CORRECTION. 


FORMS.  509 


REPORT  AT   CLOSE   OF   CASE. 

"Final  Report  of  Accident"  is  to  be  sent  in  after  the  last 
payment  of  compensation  is  made  and  is  to  accompany  the 
"Settlement  Receipt."  In  addition  to  giving  the  date  of  ac- 
cident and  date  of  return  to  work  it  will  also  contain  in- 
formation as  to  the  total  amount  of  compensation  paid  and 
the  total  medical  and  hospital  cost.  The  latter  is  no  incon- 
siderable item  in  the  cost  of  administering  a  compensation 
law  and  for  statistical  purposes  in  displaying  total  costs  is 
invaluable  and  should  therefore  never  be  omitted. 


Form  No.  7  A. 

Date  received File  No.  of  Accident 

(Do  not  fill  in.)  (Do  not  fill  in.) 


MICHIGAN  INDUSTRIAL  ACCIDENT  BOARD 
Final  Report  of  Accident. 

1.  Name  of  employer Sherwood  Mot»r  Company 

2.  Address 757-75  Water  St.,  Franklin,  Mich 

3.  Name  of  person  injured John  K.  Ledyard 

4.  Occupation Grinder ; 

5.  Wages 18.00  per  week 

6.  Total  amount  of  compensation  paid $81 .00 • 

7.  Number  of  weeks Nine 

8.  Total  medical  and  hospital  cost $45.00 

(Exclusive  of  services  of  company  surgeon.) 

9.  Date  payment  completed July  6,  1916 

10.     Date  of  accident.  ...  May  4,  1916.  .      11.     Date  of  return  to  work.  .July  6,  1 91 6. 

12.  Signature  of  person  making  report F .  M.  CRANDELL 

13.  Position Chief  Clerk 

14.  Date  of  report July  8,  1916 


AGREEMENT. 

The  "Agreement  in  Regard  to  Compensation"  is  to  be  ex- 
ecuted in  all  cases  involving  compensation.  If  payment  is 
to  be  made  for  specific  indemnity,  such  as  the  loss  of  a  finger, 
etc.,  so  specify  giving  thereon  the  number  of  weeks  involved. 
If  injuries  other  tham  specific  loss  have  been  sustained, 


510  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

specify  that  payment  of  compensation  will  be  made  during 
period  of  disability.  Specific  loss  is  not  limited  to  amputa- 
tion. There  may  be  permanent  loss  of  function  resulting 
from  the  injury,  and  agreement  should  cover  such  permanent 
loss. 

Form  No.  10. 

AGREEMENT  IN  REGARD  TO  COMPENSATION.* 

We John  K.  Ledyard 

(Name  of  the  injured  employe  or  dependents) 

residing  at  city  or  town  of Franklin,  Mich 

and .  .  ^ Sherwood  Motor  Company 

(Name  of  employer,  insurance  company  or  commissioner  of  insurance) 
have  reached  an  agreement  in  regard  to  compensation  for  the  injury  sustained  by  said 

employe  while  in  the  employ  of Sherwood  Motor  Company 

Franklin,  Michigan 

(Name  and  address  of  employer) 

The  time,  including  the  hour  and  date  of  accident,  the  place  where  it  occurred,  the 
nature  and  description  of  the  injury,  and  other  cause  or  ground  of  claim,  are  as  follows: 
The  accident  occurred  May  4,  1916,  10:30  A.  M.     Department  No.  8  Sherwood  Motor 
Company  Shops.      A  large  bar  of  steel  fell  on  the  foot  of  the  injured  causing  a  seiere  con- 
tusion, the  bones  of  the  second  and  third  being  broken , 


The  terms  of  the  agreement  follow: 

The  average  weekly  wage  being Eighteen  ($18.00) DOLLARS, 

it  is  agreed  that  compensation  be  paid  at  the  rate  of Nine  ($9.00) 

' DOLLARS, 

per  week,  during  disability  ( ) 

(If  permanent  injury  results  cross  out  "disability"  and  insert  specific  number  of  weeks) 
in  accordance  with  the  provisions  of  the  Michigan  Workmen's  Compensation  Law. 

WITNESS.     (2  witnesses  required  when  signature  is  made  by  mark) 
M.  R.  REMINGTON JOHN  K.  LEDYARD.  .  .  . 

..120  John  St.,  Franklin,  Mich (Signature  of  employe  or 

dependent) 
A.  R.  BLAKSLEY SHERWOOD  MOTOR  CO.:. 

.  .9n  Oenetee  «..  Fr.Min,  Mic* .  .  (N.m.j*    em^ye^. ^insurance 

mission) 

By J.  C.  SHERWOOD,  Secy 

(Signature  of  agent  or 
representative) 

Secretary 

(Position) 
Dated  at Franklin,   Michigan this.  .  18th.  .day  of.  .  May.  .  .  .1916. 

*NOTE — If  the  employer,  or  the  insurance  company  carrying  such  risk,  or  Com- 
missioner of  Insurance,  as  the  case  may  be,  and  the  injured  employe  reach  an  agreement 
in  regard  to  compensation  under  this  act,  a  memorandum  of  such  agreement  shall  be 
filed  with  the  Industrial  Accident  Board,  and  if  approved  by  it,  shall  be  deemed  final 
and  binding  upon  the  parties  thereto.  Such  agreement  shall  be  approved  by  said  board 
only  when  the  terms  conform  to  the  provisions  of  this  act — Section  5,  part  III. 

AGREEMENT  NOT  ACCEPTED  UNLESS  WITNESSED  AND  SIGNED  IN  INK. 


FORMS.  511 


COMPENSATION  RECEIPTS. 

"Receipts  on  Account  of  Compensation"  are  to  be  taken 
when  payments  are  made,  the  same  to  be  filed  with  the  In- 
dustrial Accident  Board. 


Form  No.  11. 

RECEIPT  ON  ACCOUNT  OF  COMPENSATION. 

RECEIVED  OF Sherwood  Motor  Company the  sum  of 

(Name  of  employer,  insurance  company  or  commissioner  of  insurance.) 

Nine dollars  and No cents 

being  the  proportion  of  the  weekly  wages  of  my* self from  the 

18th day    of May 1916,    to    the 25th day    of 

May 1916,    under    the    Michigan    Workmen's    Compensation    Law, 

subject  to  review  by  the  Industrial  Accident  Board,  said  accident  occurring  on  the 

fourth day  of May ,    1916,   while  in  the  employ   of 

Sherwood  Motor  Company,  Franklin,  Michigan 

$ 9.00 JOHN  K.  LEDYARD 

Witness M.  R.  REMINGTON (Signature  of  employe.) 

(Signature.)  303  Main  Street 

Address 120  John  St.,  Franklin,  (Street  and  number.) 

Mich  Franklin,  Michigan 

Date.  .  '.'.I:  May  26^1916.  \\\\\"  ".'.*.'".  (City  °r  ^^ 

If  the  employer,  or  the  insurance  company  carrying  such  risk,  or  commissioner  of 
insurance,  as  the  case  may  be,  and  the  injured  employe  reach  an  agreement  in  regard 
to  compensation  under  this  act,  a  memorandum  of  such  agreement  shall  be  filed  with 
the  Industrial  Accident  Board,  and,  if  approved  by  it,  shall  be  deemed  final  and  binding 
upon  the  parties  thereto.  Such  agreement  shall  be  approved  by  said  board  only  when 
the  terms  conform  to  the  provisions  of  this  act. — Section  5,  part  III. 

*Self,  husband,  or  other,  as  the  case  may  be. 
RECEIPTS  NOT  ACCEPTED  UNLESS  WITNESSED  AND  SIGNED   IN   INK. 


512  MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


RECEIPT  WHEN  LAST  PAYMENT  IS  MADE. 

The  "  Settlement  Receipt"  is  evidence,  when  signed  by  the 
recipient  of  compensation  and  a  witness,  that  all  payments 
have  been  made  in  accordance  with  the  "Agreement  in  Re- 
gard to  Compensation,"  and  should  contain  not  only  the 
amount  for  the  current  week,  but  also  the  entire  amount 
paid  by  the  employer  as  relating  to  the  particular  accident. 
This  receipt  should  be  accompanied  when  sent  to  the  Board 
by  a  "Final  Report  of  Accident,"  form  No.  7-A. 

Form  No.  12.  SETTLEMENT  RECEIPT. 

This  receipt  means  a  final  settlement.     Do  not  sign  it  unless  you  intend  to  end  payments 
of  compensation  and  close  the  case. 

RECEIVED  OF Sherwood  Motor  Company 

(Name  of  employer,  insurance  company  or  commissioner  of  insurance.) 

the  sum  of Nine dollars  and No cents, 

making  in  all,  with  weekly  payments  already  received  by  me,  the  total  sum  of 

81 dollars   and 00 cents   in   settlement    of   compensation 

under  the  Michigan  Workmen's  Compensation  Law,  on  account  of  injuries  suffered  by 

my* self on  or  about  the fourth day  of May 

,   1916,  while  in  the  employ  of Sherwood   Motor  Company,   Franklin, 

(Name  of  employer,  city,  or  town,  street  and  number.) 

Michigan subject  to  review  and  approval  by  the  Industrial  Accident  Board. 

Witness  my  hand  this eighth day  of July ,  1916. 

Witness A.  R.  BLAKSLEY ,  .  .  JOHN  K.  LEDYARD 

(Signature  of  employe.) 

Address 917  Genesee  St.,  Franklin,  _  .303  Main  Street 

Mich (Street  and  number.) 

Franklin,  Michigan 

(City  or  town.) 

If  the  employer  or  the  insurance  company  carrying  such  risk  or  commissioner  of 
insurance,  as  the  case  may  be,  and  the  injured  employe  reach  an  agreement  in  regard  to 
compensation  under  this  act,  a  memorandum  of  such  agreement  shall  be  filed  with  the 
Industrial  Accident  Board,  and  if  approved  by  it,  shall  be  deemed  final  and  binding 
upon  the  parties  thereto.  Such  agreement  shall  be  approved  by  said  board  only  when 
the  terms  conform  to  the  provisions  of  this  act. — Section  5,  part  III. 

*Self ,  husband,  or  other,  as  the  case  may  be. 
RECEIPT   NOT   ACCEPTED   UNLESS    WITNESSED   AND   SIGNED    IN   INK. 


FORMS.  513 


NOTICE  TO  EMPLOYER  OF  CLAIM  FOE  INJURY. 

The  following  form  No.  5,  "Notice  to  Employer  of  Claim 
for  Injury"  is  to  be  filled  out  by  the  injured  employe  or  his 
dependents  and  one  copy  served  upon  the  employer  and  a 
copy  mailed  to  the  office  of  the  Board  within  the  time  limits 
noted  at  the  foot  of  the  blank. 


Form  No.  5. 

NOTICE  TO  EMPLOYER  OF  CLAIM  FOR  INJURY 

Under  Act  No.  10  of  Public  Acts  Extra  Session  1912. 
(Employers'  Liability  and  Workmen's  Compensation  Law.) 

To Sherwood  Motor  Company 

(Write  name  of  employer  plainly  on  above  line.) 

767-73  Water  Street,  Franklin,  Michigan 

(Write  address  of  employer  plainly  on  above  line.) 

You  will  take  notice  that  according  to  the  provisions  of  Act  No.  10  of  Public  Acts, 
Extra  Session  1912 John  K,  Ledyard hereby  makes  claim  for  com- 
pensation for  injury  received  by Him while  in  your  employ. 

Name  of  employe John  K.  Ledyard 

Postoffice  address 303  Main  Street,  Franklin,  Michigan 

The  accident  occurred  the 4th day  of May 1916, 

at Franklin ,  Michigan. 

The  nature  of  the  injury  is  as  follows : 

Severe  contusion  of  right  foot — bones  of  second  and  third  toes  broken 

Signature ". .  .JOHN  K.  LEDYARD.. . . 

Address SOS  Main  Street,  Franklin, 

Mich 

Dated  at Franklin,  Michigan .... 

this. . .  .18th. . .  .day  of . .  .  .May.  .  .,1916. 

NOTE — This  notice  should  be  filled  out  by  injured  employe  or  some  one  in  his  behalf. 
In  case  of  death  of  employe  notice  is  to  be  filled  out  by  dependents,  or  some  person  in 
their  behalf.  Notice  of  accident  should  be  served  on  the  employer  within  three  months. 
Claim  for  compensation  should  be  made  within  six  months  by  delivering  a  copy  of  the 
above  notice  to  employer  personally  or  by  registered  mail. 

FILL  OUT  IN  DUPLICATE.     HAND  OR  MAIL  ONE  COPY  TO  EMPLOYER, 

MAIL  THE   OTHER  COPY  TO   THE  INDUSTRIAL  ACCIDENT  BOARD, 

LANSING,  MICHIGAN. 

65 


INDEX. 


INDEX. 


ABILITY  TO  EARN :  Page 

Compensation  for  partial  disability,  based  on 352 

Same  Wages,  no  effect  on  specific  indemnity 17 

Same  Wages,  with  partial  loss  of  one  eye 206,  214 

ACCELERATION: 

Of  condition  of  arterial  sclerosis 39 

Heart  condition,  not  due  to  physical  injury 319 

ACCEPTANCE  OF  ACT : 

When  effective XII 

ACCIDENT: 

As  distinguished  from  injury 338 

Assault  on  teamster  held  to  be 464 

Definition  of 125 

Hernia  by,  is  injury  within  meaning  of  act 344 

Hernia  must  have  essentials  of 1 

Is  controlling  word  in  act 125 

Sets  in  motion  agencies  which  ultimately  give  right-  to  compensa- 
tion   390 

What  to  be  reported,  rule  relative  to 499 

When  to  be  reported,  rule  relative  to 499 

ACT: 

Acceptance  of,  when  effective XII 

Applies  to  all  who  suffer  disability  from  accidental  injury 11 

As  to  filing  of  claims,  not  technically  construed 92 

Does  not  apply  to  those  injured  outside  of  state 336 

Does  not  automatically  apply  to  constitutional  bodies 102 

Does  not  include  all  personal  injuries 125 

Does  not  include  occupational  diseases 125 

Does  not  provide  for  percentage  of  loss  of  vision 206 

Giving  right  of  election,  not  unconstitutional 77 

Held  to  be  constitutional XI 

Is  in  derogation  of  common  law 267 

Municipalities,  subject  to XII 

Officer,  no  compensation 231 

Repeals  all  acts  or  parts  of  acts  inconsistent  with 72 

Scope  of,  compensation  for  accidental  injuries 125 


518          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ACT.— Con.  Page 

Title  of,  includes  municipalities 72 

Unconditional  acceptance,  effect  of 7 

ADDITIONAL  COMPENSATION: 

Awarded  on  re-opening  of  case 378 

Board  has  authority  to  award 352 

Due  employe,  on  proofs  submitted 48 

ADMINISTRATOR: 

Compensation  accrued  at  death,  payable  to 32 

Current  compensation,  not  payable  to 420 

AGREED  STATEMENT  OF  FACTS: 

Case  submitted  on 330 

Submitted  in 244 

AGREEMENT: 

Attempt  to  reach,  prerequisite  to  arbitration 352 

Death  after  approval  of,  new  right  of  action 430 

In  regard  to  compensation,  right  to  review 352 

In  regard  to  compensation,  rule  relative  to 500 

Rule  relative  to 405 

To  pay  when  approved,  equivalent  to  award 285 

When  not  binding  or  final 37& 

AGRICULTURAL  COLLEGE: 

Constitutional  Body 17,  98 

APPEALED  TO  SUPREME  COURT: 

Rule  as  to  settlement  of  return  to  writ 409 

APPLIANCES: 

Duty  of  employe  to  minimize  injury  by  aid  of 214 

APPROVAL  BY  BOARD: 

After,  case  may  be  re-opened  on  showing 378 

Agreements  for  compensation  must  have 352 

Of  acceptance  of  law  effect  of XII 

Of  agreements,  legal  equivalent  of  award 285 

Settlements  for  compensation  must  have 57 

APPROVAL  OF  AGREEMENT: 

Board  may  review  after 352 

By  Board,  legal  effect  of 285 

Not  bar  to  re-opening' and  review 370 

ARBITRATION  HEARINGS: 

Committee  may  determine  facts  upon  inference 167 

Where  applicant  does  not  appear 426 

ARBITRATORS: 

Selection  of.  .  404 


INDEX.  519 

ARISING  OUT  OF:  Page 

Accident  causing  death  on  premises  during  noon  hour 250 

Assault  on  street  laborer  whose  duty  required  him  to  move  teams 

in  the  street 464 

Barnyard  infection,  claim  not  sustained 38& 

Circumstantial  evidence  justified  finding  that 164 

Coniraction  of  lead  poisoning,  not  acc'dent ; 125 

Death  by  drowning • 21 

Death  by  falling  wall 311 

Death  by  lightning  stroke 194 

Death  by  suffocation 370 

Death  caused  by  electrical  shock 244 

Death  caused  by  injury  while  descending  from  roof 175 

Death  of  coal  miner 267 

Death  of  engineer  while  running  elevator 154 

Death  of  engineer  resulting  from  boiler  explosion 222 

Death  resulting  from  arterial  sclerosis 302 

Death  resulting  from  septic  pneumonia 259 

Death,  result  of  injury  on  way  to  time  clock 279 

Death  from  shock  unaccompanied  by  physical  injury 319 

Definition  of 185 

Delivery  boy  run  down  by  truck  while  riding  bicycle  in  street,  is .  .  439 

Disability  from  inhalation  of  cyanide  fumes 56 

Falling  on  ice 185 

Fall  resulting  in  concussion  of  brain 219 

Fractured  femur  as  a  result  of  kick  by  horse 7 

Hernia  as  result  of  strain 447 

Hernia,  personal  injury  by  accident 344 

Hernia  occurring  without  strain,  not 1 

Hernia  with  essentials'of  accident,  is 1 

Hysterial  neurosis,  following  injury 61 

Injury  resulting  from  street  risk 467 

Injury  to  eye 200 

Injury  to  eye,  due  not  to  senile  cataract,  but  to  accident 285 

Injury  to  eye,  followed  by  gonorrheal  infection 214 

Injury  to  foot 204 

Injury  to  intestines  resulting  in  death 108 

Injury  to  leg  of  street  sweeper ." 65 

Injury  to  teamster  on  street 464 

Injury  received  in  unloading  glass 52 

Insurer  not  liable  for  injury,  when 435 

Loss  of  eye  did  not 295 

Loss  of  leg  and  other  injuries 300 

Molder  injured  assisting  in  repairing  crane,  not 362 

Partial  paralysis  due  to  over-exertion  and  temperature  of  room 

unusually  high 35 


520          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

ARISING  OUT  OF.— Con.  Page 

Pneumonia  following  injury 248 

Recovery  from  injury,  retarded  by  latent  disease 431 

Rupture  of  femoral  artery,  result  of  strain 241 

Slipping  on  ice,  generally  not 14 

ARTERIAL  SCLEROSIS: 

Condition  of,  acceleration  by  heat  and  exertion 39 

Follows  injury  to  finger 302 

ASSAULT: 

Injury  by,  held  not  arising  out  of  employment 308 

On  teamster  employed  in  street  work,  held  to  be 464 

ATTORNEY  FEES: 

Right  to  determine  and  direct  payment  of 45 

ATTORNEY,  POWER  OF: 

How  to  be  executed 492 

Executed  within  six  months  but  delivered  afterwards 29 

AVERAGE  WEEKLY  WAGES: 

How  determined 267 

Method  of  computation  in  mining  industry 267 

Of  molder  while  employed  in  veneer  room  of  factory 461 

Rule  to  be  applied  in  determination  of 344 

AWARDS: 

Rule  relative  to 405 

Blank  forms 505 

BLINDNESS:     (see  eye  injury) 

Compensation  for  100  weeks  for  loss  of  only  eye 200 

BOARD: 

No  deduction  to  be  made  for,  of  minor  child 499 

BOARD  (see  Industrial  Accident  Board) : 

BUKDEN  OF  PROOF: 

Meaning  of 217 

On  applicant  to  show  that  the  accident  arose  out  of  employment .  .       250 
On  employer,  where  natural  and  reasonable  inference  is  contrary 
evidence  of  deceased  not  available  and  natural  inference 

tends  to  support  claim  of  dependent 167 

Rests  upon  claimant 295 

BURIAL: 

Right  of,  belongs  to  next  of  kin,  relatives  and  friends 325 

BURIAL  EXPENSES: 

Employer  has  no  right  to  arbitrarily  fix 325 


INDEX.  521 

CAPACITY  TO  EARN :  Page 

Does  not  affect  right  to  specific  indemnity 17 

Same  wages,  precludes  award  based  on  percentage  of  loss  of  vision  206 

CASES: 

Postponement  of 404 

CASUAL  EMPLOYMENT: 

Definition  of 488 

Not  applicable  to  municipalities  or  state  employes 98 

Where  work  is  intermittent,  but  occurs  at  intervals,  not 52 , 488 

CATARACT: 

Condition  of  eye,  not  due  to  senile 285 

CEREBRAL  ARTERY: 

Rupture  of,  from  over-exertion  and  heat 35 

CERTIORARI,  RETURN  TO  WRIT  OF: 

Findings  in,  taken  as  final  in  absence  of  fraud 285 

Must  be  taken  as  true  by 'the  Supreme  Court 250 

Practice  in  settling,  rule  governing 409 

CHAIN  OF  CAUSATION: 

Arterial  sclerosis  follows  injury  to  finger 302 

Fall  to  floor,  resulting  in  concussion  of  brain 219 

Gonorrheal  infection  following  injury  to  eye 214 

Hysterical  neurosis  following  injury 61 

Pneumonia  as  result  of  injury 248 

Septic  pneumonia  following  injury  to  finger 259 

CIRCUMSTANTIAL  EVIDENCE  (see  Evidence): 

Sufficiency  of,  to  justify  findings 370 

That  death  arose  out  of  employment 164 

That  gonorrheal  germ  entered  eye  as  result  of  accident 214 

CIRCUIT  COURT: 

Agreement  to  pay  compensation,   approved  by  Board  is  legal 

equivalent  of  final  award,  to  enforce  recovery  in 285 

Judgment  in,  by  ex  parte  action  of  respondent,  does  not  affect 

right  to  additional  compensation 48 

CLAIM: 

And  notice,  act  supersedes  city  charters 65 ,  XII 

Cannot  claim  both  compensation  and  damages 63 

Evidence  insufficient  to  establish 388 

Filed  by  attorney  within  statutory  period,  sufficient 92 

Not  necessary  that  claim  be  filed  by  authorized  agent 89 

CLAIM  FOR  COMPENSATION: 

Filing  with  Board  and  transmission  by  Board  to  employer  suffi- 
cient   ! 25 

Injury  to  eye  not  valid,  exists  until  eye  is  total  loss 390 


522          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

CLAIM  FOR  COMPENSATION.— Con.  Page 
Made  by  letter  to  respondent  company  within  time  required  by 

law .. 7 

Physical  incapacity  to  make 426 

Provisions  of  charters,  as  to,  superseded  by  Act 57 

COALMINING: 

Determination  of  average  wages  in,  industry 267 

COMMON  LAW  RIGHTS: 

Employe  may  elect,  where  injury  is  caused  by  third  party 63 

COMPENSATION: 

Awarded  after  settlement  receipt  and  case  re-opened 352 

Awarded  during  disability  as  result  of  injury  to  leg 442 

Awarded  for  death  as  result  of  fall  from  roof 179 

Awarded  for  injury  sustained  while  on  way  to  punch  time  clock .  279 

Awarded  for  death  by  suffocation 370 

Awarded  for  death  by  pneumonia  following  injury 248 

Awarded  for  death  by  septic  pneumonia  following  injury  to  finger. .  259 

Awarded  for  death  from  arterial  sclerosis 302 

Awarded  for  death  as  result  of  concussion  of  brain 219 

Awarded  for  death  of  delivery  boy 439 

Awarded  for  death  of  employe  returning  home 164 

Awarded  for  death  of  teamster 471 

Awarded  for  injury  the  result  of  strain .241,  248 

Awarded  for  hernia 1,350 

Awarded  for  loss  of  leg 300 

Awarded  for  loss  of  toes 204 

Awarded  for  loss  of  use  of  member 17 

Awarded  illegitimate  children 453 

Awarded  mother  for  death  of  son 244 

Awarded  sister  as  partial  dependent 209 

Awarded  teamster  injured  by  assault 464 

Awarded  widow  as  partial  dependent 222 

Awarded  widow  of  employe  of  municipality 51 

Board  given  jurisdiction  to  review  payment  of 48 

Cannot  be  awarded  for  percentage  of  specific  indemnity 378 

Depends  on  injured's  earning  capacity  in  case  of  partial  loss  of 

vision 208 

Denied  for  death  by  accident  outside  scope  of  employment 154 

Denied  for  death  as  result  of  fall  on  street 185 

Denied  for  death  as  result  of  lightning  stroke 194 

Denied  for  death  by  accident  on  premises  during  noon  hour 250 

Denied  for  death  caused  by  shock  in  the  absence  of  physical  inj  ury  319 

Denied  for  death  of  deputy  sheriff 498 

Denied  for  loss  of  eye  from  gonorrhea 295 

Denied  for  injury  of  eye,  remaining  sight  being  10%  normal.  .  .  .  214 


INDEX.  523 

COMPENSATION.-Con.  Page 

Denied  for  total  disability  resulting  from  loss  of  only  eye 200 

Denied  in  case  of  injury  from  barnyard  infection 388 

Denied  molder  injured  while  assisting  in  repairing  crane 362 

Denied  mother  for  death  of  son 192 

Denied  to  employe  of  State  Board  of  Agriculture 104 

Denied  when  disability  caused  by  cyanide  fumes 56 

Denied  where  injury  occurred  out  of  State 336 

Denied  widow  of  officer  (policeman) 231 

Denied  widow  who  is  ward  of  State 453 

For  loss  of  members  does  not  depend  on  loss  of  time 411 

Insurance  company  held  for  payment  of 311 

Method  of  computation 267 

Method  of  paying  compensation  for  loss  of  more  than  one  finger.  419 

No  claim  for,  exists  until  eye  is  total  loss 390 

Not  limited  to  loss  of  foot 442 

Not  payable  to  administrator 420 

Paid  employe  previous  to  death,  deducted  from  award  in  favor 

of  widow 57 

Payable  for  accidental  injuries 125 

Petition  to  be  relieved  of  payment  of,  denied 11 

Petition  to  stop,  denied -.  285 

Taxes  may  be  levied  by  municipalities  to  pay 77 

CONCLUSIVELY  PRESUMED: 

Daughter  living  with  relatives,  held  not 453 

Mother,  not 192 

Sister,  not 206 

Wife  confined  in  insane  asylum,  held  not 453 

Wife  living  apart  at  time  of  injury,  not 222 

CONFINEMENT,  IN  PRISON: 

If  injured  during,  not  entitled . . 397 

CONSULS: 

Status  of  foreign 423 

'   CONSTITUTIONAL  LAW: 

The  Act  as  relates  to  constitutional  bodies 102 

The  Act  as  relates  to  municipalities 77 

CONTRACT: 

Written,  construed  in  connection  with  surrounding  circumstances  311 

CONTRACT  OF  HIRE: 

Evidence  will  sustain  finding  of 154 

Required  employe  to  be  ready  to  respond  at  all  times 167 

Surrounding  circumstances  to  be  taken  in  connection  with 311 

CONVICTS: 

Injured  during  imprisonment,  not  entitled 397 

. 

; 


524          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

CORPORATION:  Page 

Officer  of  may  be  employe 422 

CORPORATION,  NOT  FARMER: 

When  running  farm  is  part  of  its  manufacturing  business 7 

DEATH  (see  Fatal  Injury) : 

As  a  result  of  boiler  explosion 222 

As  result  of  fall 179 

By  drowning 21 

Due  to  street  risk 467 

From  arterial  sclerosis  following  injury  to  finger 302 

From  concussion  of  brain  as  result  of  fall 219 

From  lightning 194 

From  peritonitis,  not  due  to  injury 32 

From  pneumonia  due  to  injury 108 

From  pneumonia  following  injury 248 

From  septic  pneumonia  as  result  of  injury  to  finger 259 

From  shock,  unaccompanied  by  physical  injury 319 

From  suffocation  did  arise  out  of  employment 370 

If  result  of  the  accident,  new  right  of  compensation  arises  to  de- 
pendents    430 

Not  result  of  accident  arising  out  of  employment 185 

Oh  premises,  going  to  dinner 250 

Performance  of  duty  imposed  by  master  is  proximate  cause  of . . .  282 

DEDUCTION: 

Compensation  paid  before  death 57 

No  deduction  for  board,  partial  dependent 499 

Payment  in  lieu  of  damages  to  be  deducted  from  compensation ...  63 

DELIRIUM  TREMENS: 

Resulting  two  days  after  injury 485 

DENIAL  OF  LIABILITY: 

Rule  relative  to 405 

DEPENDENCY: 

Case  remanded  to  determine  extent  of 222 

Of  minor  child,  not  determined  solely  by  contributions 330 

Question  of  fact,  to  be  determined  as  of  date  of  injury 209 

DEPENDENT: 

Aunt  wholly  dependent  on  nephew 

Illegitimate  children  held  to  be 453 

Minor  child  not  living  with  parent  held  to  be 330 

Mother  held  partial 244 

Mother  not 192 

Partial  no  deduction  for  Board 499 

Sister  held  partial 209 

Widow  living  apart  at  date  of  injury  held  partial 222 


INDEX.  525 

DEPOSITIONS:  Page 

To  be  taken  under  statute 406 

DEPUTY  SHERIFF: 

Officer  and  not  entitled 49& 

DIABETES: 

Claim  that  death  was  due  to,  not  sustained 13$ 

DINNER  HOUR: 

Going  to  and  from  work  on  premises  of  employer  during 250 

Injury  received  while  on  way  to  time  clock  during 279^ 

DISABILITY: 

In  case  of  partial  loss  of  hand,  compensation 37& 

Loss  of  only  eye,  total  for  100  weeks 200 

Result  of  injury 431 

Subject  to  limitation  of  statute 442 

Test  of  is  ability  to  earn  in  same  employment 352 

DISEASE: 

Cyanide  poisoning,  is 56 

Death  due  to 319 

Latent,  not  a  bar  to  recovery .  .  . 11 , 431 

Lead  poisoning,  is , 125 

Loss  of  eye  due  to 295 

DROWNING: 

Death  caused  by 21 

DURATION  OF  DISABILITY: 

Injury  to  foot  where  disability  in  fact  continues,  not  limited  to 

125  weeks 442 

Not  to  be  estimated 11 

Prolonged  by  pre-existing  disease 431 

EARNINGS: 

Compensation  for  partial  loss  of  vision  depends  on 206 

Disability  to  be  determined  by 352 

ELECTION: 

Constitutional  bodies  may  elect  to  accept  Act 102 

Law  in  giving  private  employers  right  of,  not  unconstitutional. . .  77 

*When  employe  becomes  subject  to  the  law 425 

ELECTRIC  SHOCK: 

Death  caused  by 244 

EMPLOYEE: 

Member  of  state  militia,  not  an 400 

Of  State  Board  of  Agriculture,  not  employe  of  state 102 

On  call  at  all  times 167 

Owner  of  team  working  under  direction  of  foreman,  is 321 

Policeman  not ....  231 


526          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

EMPLOYEE.— Con.  Page 

Right  of  control  determines  whether 471 

Volunteer  fireman  is,  within  meaning  of  Act 398 

EMPLOYMENT: 

Compensation  based  on,  at  time  of  injury 461 

Evidence  sufficient  to  show  contract  of 154 

Held  not  to  be  casual 488 

Irregular 267 

Partially  disabled,  duty  to  seek 418 

Ringing  of  time  clock,  part  of  contract  of 279 

Surrounding  circumstances  to  show  contract  of 311 

Test  of  disability,  is  capacity  to  earn  in  same 352 

ESTATE: 

Compensation  accrued  at  death,  payable  to  administrator  of 32 

EVIDENCE: 

Additional  taken-  for  review 244 

As  to  cause  of  death,  fair  preponderance 21 

As  to  feelings,  mental  or  physical,  is  admissible 259 

Brought  question  as  to  cause  of  within  domain  of  fact 219 

Burden  of  furnishing,  rests  upon  claimant • .  .  .  .  295 

Circumstantial  evidence,  death  cases,  inference 370 

Circumstantial  evidence  sufficient  to  justify  finding 167 

Definition  of  preponderance  of 214 

Established  rules  of,  govern XIII 

Finding  of  extent  of  dependency  supported  by 209 

Hearsay 259,  302,  XIII 

Inference  of,  justified  finding 167 

Insufficient  to  sustain  claim 388 

Justifies  finding  disability  the  result  of  strain 241 

Justifies  finding  of  relation  of  employer  and  employe 471 

Lack  of  direct .' 21 

Not  conclusive  as  to  success  of  operation 108 

Not  sufficient 388 

Not  sufficient  to  justify  reversal  of  finding 248 

Not  sufficient  to  show  that  accident  arose  out  of  employment .  .  .  250 

Not  sufficient  to  establish  conclusive  presumption  of  dependency .  »222 

Reasonable  inference,  in  ambit  of  employment 467 

Report  of  accident  by  employer,  when  prima  facie 259 

Sufficient  to  support  claim  that  injury  was  cause  of  death 57 

Sufficient  to  support  finding. 302 

That  death  was  due  to  diabetes,  not  sustained  by 139 

That  hernia  was  caused  by  accident 29 

That  paralysis  resulted  from  rupture  of  blood  vessel 35 

To  support  a  finding  of  fact,  is  sufficient 154 


INDEX.  527 

EVIDENCE. -Con.  Page 
To  support  a  finding  that  misconduct  was  not  intentional  and 

wilful 282 

Warrants  finding 467 

EXERTION: 

Accelerating  arterial  sclerosis,  resulting  in  paralysis 35 

Cause  of  injury  to  back  followed  by  pneumonia 248 

EYE  INJURY: 

As  result  of  assault 308 

Infection  after  injury 214 

Loss  of  eye  due  to  disease 295 

No  valid  claim  exists  until  eye  is  lost 390 

Partial  loss  of,  where  person  is  able  to  earn  same  wages 206,  214 

Senile  cataract,  not  cause  of 285 

To  only  eye 200 

EXTRA-TERRITORIAL  OPERATION: 

Act  does  not  cover-outside  of  State 336 

FARM  LABORERS: 

Act  does  not  exclude  farmers 7 

FATAL  INJURY:     (see  Arising  out  of) 

As  result  of  fall  causing  concussion  of  brain 219 

Did  not  arise  out  of  employment 154,  185 

Received  during  noon  hour 279 

Result  of  lightning  stroke 194 

FEES: 

Power  to  determine,  attorneys  and  physicians 45 

FINDINGS: 

Court  will  not  disturb,  in  absence  of  fraud 167,  285 

Evidence,  sufficiency  of 219,  302 

Extent  of  dependency,  question  of  fact 209 

Of  fact,  conclusive  where  supported  by  evidence 143,  259,  282 

Of  fact  as  to  contract  of  employment 154 

Of  fact  by  Board,  conclusive 241 

FOOLING  (see  Assault) : 

FOREIGN  CONSULS: 

Status  of ! 423 

FOREIGN  DEPENDENTS: 

Letters  rogatory,  practice  in 428 

Power  of  attorney,  how  executed 429 

Transmission  of  money 427 

FRIGHT: 

Unaccompanied  by  physical  injury,  no  compensation 319 


528          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

FUNERAL:  Page 

Right  of  belongs  to  next  of  kin,  relatives  and  friends .  325 

FUNERAL  EXPENSES: 

Employer  has  no  right  to  arbitrarily  fix 325 

FULL  BOARD  HEARINGS: 

Rule  relative  to 407 

HEALTH: 

Condition  of,  when  retards  recovery 431 

No  standard  of,  required  by  law > 11 ,431 

HEARING: 

Additional  testimony  taken  at 244 

•Application  to  take  cumulative  testimony  after,  denied 139 

Case  remanded  for  further,  if  parties  desire 222 

Postponement  of,  rule  of  Board ' 408 

HEARSAY  EVIDENCE: 

As  to  feelings,  mental  or  physical,  is  admissible 259 

Case  will  not  be  reversed  because  of  admission  of 302 

HEART  DISEASE: 

Cause  of  death 319 

Not  cause  of  death . '. 219 

HEMORRHAGE: 35 

HERNIA: 

An  injury  within  meaning  of  Act 344 

As  result  of  strain „ 447 

Caused  by  lifting  crank  case 29 

Held  personal  injury  by  accident 344 

Must  have  essentials  of  an  accident 1 

HIRE,  CONTRACT  OF  (see  Contract  of  Hire) : 

Evidence  not  sufficient  to  sustain  finding 154 

Surrounding  circumstances  to  be  taken  in  connection  with 311 

HOSPITAL  EXPENSES: 

After  three  weeks 338 

Source  of  payment  of 415 

HUSBAND  AND  WIFE: 

Living  apart  at  date  of  injury 222 

ICE,  SLIPPING  ON: 

Not  an  accident  arising  out  of  employment 185 

On  premises  of  employe 14 

ILLEGITIMATE  CHILDREN: 

When  members  of  deceased's  family,  entitled  to  compensation .  .  453 
IMPRISONMENT: 

Convict  injured  during  confinement,  not  entitled 397 


INDEX.  529 

INCAPACITY  FOR  WORK:  Page 

None  shown  in  case  of  partial  loss  of  vision 206 

INCIDENT  TO  EMPLOYMENT: 

Assault  held  to  be 464 

Assault  not '. 308 

Death  by  lightning  stroke,  not  always 194 

Falling  on  street,  not 185 

Hazard  must  be " 14 

Ringing  of  time  clock,  is 279 

INDEPENDENT  CONTRACTOR: 

Distinguished  from  employe 471 

Employe  owning  team  working  under  directions  of  foreman,  not.  321 

Employe  owning  team  and  hauling  logs,  held  not 471 

Employe  performing  individual  labor  outside  contract,  held  not .  488 
Written  contract,  taken  in  connection  with  surrounding  circum- 
stances, sufficient  to  establish  status  of , 311 

INDUSTRIAL  ACCIDENT  BOARD: 

Appeal  to  Supreme  Court  will  not  lie  from  award  of  committee  on 

arbitration 459 

Findings  of,  conclusive,  if  suppoited  by  competent  evidence.  .143,  259 

Has  right  to  review  agreement  and  settlement 352 

Is  administrative  body  vested  with  quasi  judicial  powers 259 

May  determine  facts  upon  reasonable  inference 167 

May  refuse  to  grant  time  to  file  additional  evidence 143 

Rule  as  to  hearings  before 407 

Will  not  be  reversed  on  theory  of  being  bound  by  stipulation. . . .  244 

INFECTION : 

Accidentally  contracted 388 

Cause  of  myocarditis 302 

Condition  of  eye  due  to  gonorrhea 295 

Contracted  as  result  of  accident  to  eye 214 

INFERENCE: 

As  to  cause  of  death  justified  by  circumstantial  evidence 370 

Court  will  not  disturb  findings  where  different,  may  be  drawn . . .  285 

Evidence  sufficient  to  support  finding,  drawn  from 302 

From  evidence  that  injury  arose  out  of  employment 467 

Of  fact  conclusive  in  absence  of  fraud 167 

'     That  death  resulted  by  drowning,  justified 21 

That  deceased  was  within  ambit  of  employment,  justified 467 

INJURY: 

By  accident 125 

Disability  the  result  of 431 

Distinguished  from  accident 338 

To  arm 11,431 

67 


530          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

INJURY.— Con.  Page 

To  eye,  followed  by  gonorrheal  infection 214 

Pneumonia  following  as  result  of - .  248 

INSURANCE: 

Law  provides  that,  carrier  is  directly  liable 311 

Municipality  may  insure  part  of  employes 423 

Optional  as  to  municipalities 423 

INSURER: 

Deemed  party 405 

Liable  under  provisions  of  Act 311 

Not  liable  when  undertaking  not  covered  by  policy 435 

INTENTIONAL  AND  WILFUL  MISCONDUCT: 

A  question  of  fact «. 282 

Delivery  boy  riding  bicycle  in  street,  takes  hold  of  rear  of  motor 

truck,  proceeding  in  same  direction,  held  not 439 

Disregarding  of  warning  signs,  when  not 139 

Failure  to  tell  physician  of  intemperate  habits,  not 485 

Failure  to  use  ladder,  held  not 179 

Inattention,  lack  of  mental  alertness,  failure   o  hear  signals,  not .  327 

Infraction  of  rules,  when  not 279 

Negligence  not 204 

,  Refusal  to  submit  to  operation,  held  not 108 

INTER-INSURANCE  EXCHANGES: 

Must  have  approval  of  Board 393 

INTRODUCTION: XI 

JURISDICTION: 

Injuries  occurring  out  of  State  not  within 336 

LATENT  DISEASE: 

Act  does  not  except  from  its  benefits,  those  who  carry 

Retarding  recovery 431 

LETTERS  ROGATORY: 

Practice  in 

LEGISLATURE: 

May  not  interfere  with  Michigan  Agricultural  College 102 

Relief  for  defects  in  law,  lies  with 206 

LIABILITY: 

Of  employer,  for  compensation  accrued  at  time  of  death 

Of  insurance  carrier 435 

Rule  relative  to  denial  of 405 

LIGHTNING,  DEATH  FROM : 

Did  not  arise  out  of  employment 194 


INDEX.  531 

LIVIXC;  APART:                                                                                   ,  Page 

At  date  of  injury,  widow  is,  partial  dependent 222 

At  date  of  injury,  widow  held  not  dependent 453 

LONGSHOREMEN: 

Employes  within  the  meaning  of  law 498 

LOSS  OF  MEMBER: 

Act  does  not  authorize  award  for  partial 378 

Act  does  not  provide  for  percentage  of  specific  indemnity 206,   214 

Additional  compensation  for,  after  general  disability  ceases 300 

Specific  indemnity  does  not  depend  on  loss  of  time 17,  411 

Specific  indemnity,  when  payable 17 

LOSS  OF  USE  OF  MEMBER: 

Compensation  awarded  for 65 

Entitles  injured  to  compensation 17 

Point  of  amputation  not  controlling 414 

LUMP  SUM: 

Rule  relative  to ; t  408 

Settlement  during  disability 418 

LUNCHEON: 

Death  as  result  of  injury  while  on  way  to 175 

M ASTER  A,ND  SERVANT: 

Evidence  not  sufficient  to  justify  finding  of 154 

Xo  relation  of,  at  time  of  injury 341 

Right  of  control  determines  relation  of 471 

Surrounding  circumstances  sufficient  to  establish 311 

MEDICAL  AND  HOSPITAL  TICKETS 416 

MEDICAL  EVIDENCE: 

Did  not  conclusively  establish  that  operation  would  effect  cure .  .  108 

Petition  to  introduce  additional,  denied 139 

Sufficient  to  sustain  finding 302 

Sufficient  to  sustain  finding  that  injury  caused  pneumonia 248 

Sufficient  to  sustain  inference  drawn 285 

Supported  circumstantial  evidence 370 

Supported  the  finding  of  Board 241 

That  condition  is  due  to  disease 295 

That  death  was  due  to  diabetes,  not  sufficient  to  sustain  claim .  .  139 

That  vision  could  be  increased  with  aid  of  glasses 214 

To  effect  that  shock  and  not  physical  injury  caused  death .319 

MEDICAL  SERVICES: 

Liability  for 29 

Refusal  to  accept,  not  unreasonable 108 

Rule  relative  to  contested  bills  for 407 

To  be  furnished  for  three  weeks  from  time  injury  requires 338 

68 


532          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

MEMBER,  LOSS  OF  (see  Loss  of  Member) :  Page 

Act  does  not  provide  for  percentage  of 206,  214 

Compensation  for  partial,  to  be  determined  on  loss  of  earnings .  .  378 

Disability  not  limited  to  specific  indemnity  for 442 

Specific  indemnity  does  not  depend  on  loss  of  time 17 

MEMBER  OF  STATE  MILITIA: 

Not  an  employe 400 

MINOR: 

Child  dependent  upon  parent 330 

Payment  of  compensation  to 413 

MISCONDUCT: 

Intentional  and  wilful  is  question  of  fact - 282 

MOTHER: 

Entitled  to  compensation  as  partial  dependent 244 

Not  entitled  to  compensation 192 

MUNICIPAL  CHARTERS: 

Policeman,  an  officer  within  meaning  of 231 

Provision  as  to  filing  claims,  superseded  by  compensation  law .  .  57,  65,  72 

MUNICIPALITY: 

May  insure  part  of  employes 423 

May  levy  taxes  to  pay  compensation 77 

Subject  to  Act XII 

The  Act  as  relates  to 77 

Title  of  Act  broad  enough  to  include 72 

NEGLIGENCE: 

Does  not  defeat  compensation  unless  amounting  to  intentional 

and  wilful  misconduct 204 

Liability  of  city  not  affected  by  lack  of . . .  . , 65 

NEUROSIS: 

Disability  due  to  hysterical 61 

NOON: 

Accident  during,  did  arise  out  of  employment 279 

Accident  during,  did  not  arise  out  of  employment 250 

NOTICE  OF-IN JURY: 

Failure  to  give,  not  a  bar  where  city  officials  have  knowledge  ...  72 

Letter  from  attorney,  sufficient 89 

Notice  in  section  16,  Part  II,  what 72 

Sufficient  when  reported  to  superintendent 

To  department  of  municipality  sufficient 57 

NOTICES: 

How  posted  by  employers 421 

Not  required  to  be  posted  by  municipalities 522 

Posting  of,  in  determining  status  of  employer 311 


INDEX.  533 

OATH  OF  ARBITRATORS :  Page 

Rule  relative  to 410 

OCCUPATIONAL  DISEASE: 

Cerebral  hemorrhage,  not 39 

Held  law  does  not  cover 122,  XIII 

Definition   of 125,  XIII 

Inhalation  of  cyanide  fumes,  is 56 

Lead  poisoning,  is 125 

Not  covered  by  the  Act 125 

OFFER  OF  EMPLOYMENT 418 

OFFICER: 

Deputy  sheriff,  is 498 

Of  corporation,  may  be  employe 422 

Policeman  is,  under  charter  City  of  Pontiac 231 

ON  THE  PREMISES: 

Of  employe 14 

Of  employer 164 

Of  a  railroad  during  noon  hour 250 

OPEN  AWARD: 

Board  may  enter 29 

OPERATION: 

Refusal  to  submit  to,  not  unreasonable.  . 106 

PARALYSIS: 

Accident  within  meaning  of  act 35 

PARENT: 

Minor  child  dependent  on 330 

Minor  child,  held  not  dependent  on 453 

Mother  not  dependent  on  son 192 

Mother  partially  dependent  on  son 244 

PARTIAL  DISABILITY: 

Award  to  be  based  upon  loss  of  earnings  in  case  of 378 

Compensation  for,  measured  by  lessened  earnings 214 

Duty  to  seek  employment 418 

Entitled  to  compensation  during  continuance  of 61 

To  be  determined  by  ability  to  earn  in  same  employment 352 

PARTIAL  INCAPACITY: 

After  fourteen  days 421 

PARTNERSHIP: 

Partner  not  an  employe : 422 

PAYMENT: 

Method  of  making,  for  more  than  one  finger . « 419 

Of  compensation  to  minors 413 


534          MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 

PAYMENT.— Con.  Page 

Of  hospital  expense  after  first  three  weeks 415 

Place  of  making 412 

To  be  made  weekly 420 

PERCENTAGE: 

Act  does  not  provide  payment  for  percentage  of  loss  of  vision.  .206,  214 

Award  based  on  percentage  of  loss,  not  authorized 378,  390 

Of  loss  of  vision  increased  by  aid  of  glasses 214 

PERITONITIS: 

As  a  result  of  injury 108 

PERSONAL  INJURY  (see  Arising  out  of  and  in  the  Course  of) : 

Act  does  not  include  all 125 

Evidence  insufficient  to  establish  claim  that,  was  result  of  an 

accident 388 

Out  of  State,  not  compensable 336 

Pneumonia  following  injury  is 248 

In  fight  held  not  to  arise  out  of  employment 308 

To  finger  results  in  death 302 

PERSONAL  INJURY  BY  ACCIDENT: 

Barnyard  infection,  not,  on  proofs  submitted 388 

Cyanide  poisoning,  not 56 

Lead  poisoning,  not 125 

PLACE  OF  MAKING  PAYMENT 412 

POISONING: 

Lead,  not  an  accident 125 

Cyanide,  not  personal  injury  by  accident 56 

POLICEMAN: 

An  officer  not  an  employe ". 231 

POSTING  OF  NOTICES: 

By  employer 421 

By  municipalities 422 

POWER  OF  ATTORNEY: 

How  executed 429 

In  effect  at  time  of  mailing 89 

PRACTICE: 

Testimony  after  case  is  heard  and  submitted  before  the  full 

Board 139 

Rules  of  procedure 404 

In  arbitration  hearings  where  applicant  does  not  appear 426 

PREMISES  OF  EMPLOYER: 

Not  trespassing  on 167 

PRISON  (see  Confinement  in  Prison) : 


INDEX.  535 

PROOFS:  Page 

Rule  relative  to  taking  of 406 

PROXIMATE  CAUSE: 

Fall  to  floor,  resulting  in  concussion  of  brain 219 

Injury  and  not  disease,  of  disability 431 

Injury,  followed  by  pneumonia 248 

Injury  to  eye,  resulting  in  cataract,  is 285 

Injury  to  eye,  not 295 

Not  shifted  from  injury  to  intemperate  habits 485 

Performance  of  duty,  imposed  by  employer,  is 282 

Pneumonia  as  a  result  of  operation 108 

Shock  and  not  physical  injury,  cause  of  death 319 

QUESTION  OF  FACT: 

Cause  of  death,  is -. 219 

Duration  of  disability,  is 442 

Extent  of  dependency,  is 209 

Intentional  and  wilful  misconduct,  is 282 

RECOVERY: 

Retarded  by  latent  disease 431 

RE-EMPLOYMENT  NO  PART  OF  SETTLEMENT 417 

RE-OPENING: 

Additional  compensation 352 

Authority  of  Board  to  grant 378 

Board  acted  within  authority  in 378 

REMANDING  OF  CASE: 

After  hearing  by  Supreme  Court 222 

REPORT  OF  ACCIDENT: 

When  prima  facie  evidence 259 

By  foreman,  to  employer,  admissible  as  prima  facie  evidence ....  302 

Employer  to  make 125 

Rules  relative  to 499 

RESADJUDICATA: 

What  constitutes,  award 285 

REVIEW  BEFORE  BOARD: 

Rule  relative  to 407 

REVIEW  OF  WEEKLY  PAYMENTS: 

Board  has  jurisdiction  of 48 

RIGHT  TO  REVIEW: 

Board  has 352,  398 

Is  vested  in 352 


536          MICHIGAN  WORKMEN'S"  COMPENSATION  CASES. 

RISK:  Page 

Boy  making  deliveries  on  bicycle,  street 439 

Must  be  incidental  to  employment 185,  194 

Street  and  traffic 467 

RUPTURE:     (see  Hernia) 

Of  femoral  artery 241 

Of  intestine 106 

RULES  OF  PROCEDURE 404 

Rules  and  system  for  reporting  accidents,  etc 499 

SALESMAN: 

Traveling  out  of  state  and  injured,  not  entitled 336 

SETTLEMENT/ 

Board  has  right  to  review 352 

Lump  sum  settlement  during  disability 418 

Not  binding  until  approved  by  Board 57 

Re-employment  no  part  of 352,  417 

SETTLEMENT  RECEIPT : 

After  filing  of,  Board  may  reopen  case 352 

SHOCK: 

In  absence  of  physical  injury,  not  compensable 319 

SHOP  RULES: 

Violated  through  inadvertence  or  inattention 279 

Mere  violation  of  instructions  of  employer,  held  not  intentional 

and  wilful  misconduct 327,  421 

SISTER: 

Partial  dependent 209 

SON: 

Mother  not  dependent  on 192 

Mother  partially  dependent  on 244 

SPECIAL  RISK  OF  EMPLOYMENT: 

Lightning  stroke,  not 194 

Slipping  on  ice,  not 14,  185 

SPECIFIC,  FOR  LOSS  OF  MEMBER: 

Act  does  not  provide,  in  case  of  partial  loss  of  vision 206,  214 

Ceases  upon  death  of  injured 32 

Does  not  depend  on  loss  of  time 411 

STATE  FIRE  WARDEN: 

Workman  called  to  assist 341 

STIPULATION: 

Case  on,  of  facts : 330 

Case  submitted  by ' ' 194 


INDEX.  537 

STIPULATION.— Con.  Pj.gr 

Of  facts  submitted 200 

Testimony  taken  in  addition  to 244 

STREET  SWEEPER: 

For  injuries  to  leg  entitled  to  compensation 65 

STREET  TRAFFIC: 

Danger  from,  held  to  arise  out  of  employment 467 

SUPPLIES  AS  PART  PAY: 

Miners  receiving  supplies  in  part  payment 417 

SUPREME  COURT: 

Appeal  to  does  not  lie,  from  award  of  arbitration  committee ....       459 

Dissenting  opinion  filed  by 362 , 439 

Rule  relative  to  appeals  from  decision  of  Board 409 

SUPPORT: . 

Mother  not  dependent  on  son  for 192 

Sister  dependent  on  brother  for  partial 209 

SYPHILIS: 

Question  of,  raised 1 1 , 431 

TABLE  OF  CASES V 

THIRD  PERSON: 

Settlement  by,  for  damages  to  injured  workmen 63 

TITLE  OF  STATUTE: 

Not  broad  enough  to  include  occupational  diseases 125 

TRESPASSER: 

Injured  by,  did  not  arise  out  of  employment 308 

TRESPASSER  ON  RAILROAD  PREMISES: 

Foreman  of  section  not 167 

Injured  workman  not 164 

UNIVERSITY: 

Regents  of  constitutional  body XIV 

USE  OF  MEMBER,  LOSS  OF: 

Compensation  awarded  for 65 

.   Equivalent  to  loss  of  member 17 

VIOLATION  OF  SHOP  RULES 421 

VISION: 

Increased  from  10%  of  normal  to  50%  with  aid  of  glasses 214 

Percentage  of  loss  of,  does  not  permit  award 206,  214 

VOLUNTEER: 

Engineer  running  elevator  held  to  be 148 

Fireman  entitled  to  compensation 398 


538 


MICHIGAN  WORKMEN'S  COMPENSATION  CASES. 


VOLUNTEER.— Con. 

Moulder  going  up  on  crane  to  assist  trouble  man,  is 

To  assist  in  ejecting  trespasser 


Page 
362 

308 


WAGES  (see  Average  Weekly) : 

Ability  to  earn  same,  not  affected  by  injury  to  eye 206,   214 

Based  on  work  engaged  in  at  time  of  injury 461 

Rule  of  determination 267 

WAIVER: 

Claim  for  compensation  waived  by  carrying  on  negotiations  for  a 

settlement 25 

WARDS  OF  STATE: 

Not  entitled 403 

WEEKLY  PAYMENTS: 

Board  has  right  to  review • 352 

WHOLLY  DEPENDENT  (see  Dependency) : 

Mother  held  not 192 

Sister  held  not 209 

WIDOW  (see  Dependency) : 

Compensation  denied 194 

Entitled  to  compensation  for  death  of  husband  returning  to  his 

home 164 

Held  not  entitled  to  compensation 453 

Not  conclusively  presumed  to  be  dependent 222 

Not  entitled  to  compensation  for  death  of  husband  returning  home       185 
Of  policeman,  not  entitled 231 

WITNESSES: 

Rule  relative  to 406 

WORK: 

Ringing  of  time  clock,  part  of 279 


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UNIVERSITY  OF  CALIF 


